§ Lords Reasons for disagreeing to certain of the Commons amendments considered.3.56 pm
§ The Parliamentary Secretary, Lord Chancellor's Department (Mr. Keith Vaz)
I beg to move, That this House does not insist on Commons amendments Nos. 27 to 30, to which the Lords have disagreed.
Lords Reason:Because it is not appropriate for the Legal Services Commission itself to provide advice, assistance or representation to individuals involved in criminal investigations or criminal proceedings.
§ Mr. Vaz
The amendments would reinstate powers for employees of the Legal Services Commission to provide advice, assistance and representation as part of the Criminal Defence Service. They would enable the commission to develop a mixed system for the provision of the full range of criminal defence services, through both salaried defenders and contracts with lawyers in private practice.
When the Bill first came before the House, it had been denuded of the power to provide services in this way as a result of action taken in another place in support of—it has to be said—blatant vested interests. The House wisely reinstated provisions that would give the commission the greatest flexibility to provide cost-effective services, and to provide a wider choice for the public.
As the House will know, a public defence solicitors' office has been operating in Scotland on a pilot basis since October last year. That office is already finding that 22 per cent. of its clients are choosing its services in preference to those of people in private practice. The remainder of its clients are allocated randomly between the private and the employed sector.
What the Bill proposes does not involve allocation; it is based on freedom of choice. It seems, however, that some in the private sector fear the competition that freedom of choice will introduce. It is surprising, to say the least, to find the principal opponents of choice in the other place on the Liberal Democrat Benches. The other place has now rejected these proposals twice. On the second occasion, it did so when it enjoyed the explicit backing of this House, which is directly responsible to the electorate who might wish to take advantage of the services involved. That cannot be the role envisaged for a revising Chamber.
I am delighted to see that the hon. Member for Torridge and West Devon (Mr. Burnett) is present. I am sure that he will advance the arguments of his party, and will explain why its members voted as they did in the other place.
The issue of salaried defenders has been the subject of widespread debate in both this House and another place, and also outside Parliament. I was very pleased to see early-day motion 840 on today's Order Paper. The motion, initiated by my hon. Friend the Member for 1202 Hendon (Mr. Dismore), has already been signed by 59 hon. Members, including the hon. Member for Colchester (Mr. Russell).
When listening to debates such as this, I have had occasion to wonder whether the opponents of the provisions really understand what they are opposing.
§ Mr. Edward Garnier (Harborough)
No doubt as a result of some oversight, the hon. Member for Hendon (Mr. Dismore), who initiated that early-day motion, does not appear to be here to listen to the Parliamentary Secretary. For the benefit of the many Members who are listening to him, would he be good enough to recite the terms of the early-day motion, so that we could come to grips with it and see precisely what he supports and what the hon. Member for Hendon is so keen on?
§ Mr. Vaz
I know that the hon. and learned Gentleman has a special relationship with my hon. Friend the Member for Hendon. I will leave that to one side. He has a pair of legs. I am sure that he can trot off to the Vote Office, get a copy of the Vote—which we are all entitled to do—and read it for himself.
There are those who seem to think that the criminal defence service is synonymous with a United States-style public defender office. In fact, it refers to the flexible system that will replace criminal legal aid, which will provide criminal defence services through a mix of salaried defenders and lawyers in private practice.
It is emphatically not the Government's intention to introduce a comprehensive public defender system. We have made that clear on a number of occasions, yet unfavourable comparisons are drawn with public defender systems in other countries, rather than with mixed systems such as those in Canada.
There has been debate about the independence and ethical standards of salaried defenders, but little acknowledgement of clause 37, which places the overriding ethical duties of all advocates and litigators on a statutory footing; or of clause 16, which provides for a code of conduct specifically for salaried defenders.
Furthermore, the Legal Services Commission will be an independent non-departmental body. There is simply no danger of collusion between its employees and the prosecution, and perhaps less risk of an appearance, or perception, of collusion than where two barristers from the same chambers appear on opposite sides.
Lawyers in Britain are rightly proud of their integrity and independence, but that independence flows from their membership of a profession and their obedience to the ethical rules that their profession enforces, not from the way in which they are paid. It is fallacious and an insult to thousands of employed lawyers to seek to equate "independent practice" with the independence needed to advise and to act for a client.
Salaried defenders will give the public a wider choice of representative. They will provide the Legal Services Commission with the means to assess value for money provided by criminal defence services generally. They will increase the commission's flexibility in the provision of criminal defence services and provide a competitive stimulus to lawyers in private practice.
The state is under no obligation to guarantee to the private profession that it, and it alone, may provide publicly funded legal defence services. Given that high 1203 standards will be maintained, the public will gain from the introduction of salaried defenders as part of a mixed system of legal service provision.
International research shows that mixed systems, with salaried defenders operating alongside private lawyers, can be the most successful way in which to provide criminal defence services. That is the view of Bar associations, including the Canadian Bar Association and the American Bar Association. It is advocated by official bodies such as the Legal Services Corporation in America and the National Legal Aid Advisory Committee in Australia.
We will learn from the overseas and Scottish experience as we introduce salaried defenders in England and Wales. We also intend to consult widely before taking any steps. After that, the Legal Services Commission will establish pilot projects to test and to evaluate different models for providing services through salaried defenders. We would start with small pilots and monitor them precisely to see how effective the arrangements were. The pilot projects would be extended throughout the country only after we had had experience of salaried defenders in practice. Decisions will therefore be taken on the basis of evidence, not prejudice and assumption.
Alternative amendment (e) broadens the scope of clause 15(9), which currently provides that regulations may not require someone to select an employee of the commission as his or her representative. If amended as I propose, the subsection would also catch employees of separate bodies established and maintained by the commission to provide salaried criminal defence services. We intend to test both models—direct employment and separately maintained bodies akin to law centres—in the pilots.
I should also make it clear that, within the commission, salaried defenders will work within a separate organisational unit or units, reporting to a senior lawyer responsible for managing them in a way that respects and protects their professional integrity. They will not have additional responsibilities for any other of the commission's functions. They will be employed as criminal defenders, and I have no doubt at all that, as such, they will dedicate themselves to defending their clients with the same professional skill, judgment, and fearless independence and integrity as would any lawyer in the private sector.
Alternative amendments (a) and (c) are intended to give a better flavour of that. Rather than saying that the commission may itself provide advice, assistance and representation, the amended Bill will say that the commission may employ persons to provide those services. We have not proposed a similar change to the language of clause 7 on the community legal service, because there is not the same imperative to ensure that salaried providers of civil services are managed, and are seen to be managed, separately from other staff; and because the commission may provide services other than by employing people—for example, by making information available in electronic form on the internet.
The Government are confident that salaried defenders will develop to play a valuable role in the criminal defence service without any element of compulsion. I challenge the private profession to demonstrate the same confidence in the service that they provide. I, for one, have that confidence, and submit that the private 1204 professions have nothing to fear from competing alongside salaried defenders in a system based on an informed choice of representative.
Those in another place who have removed similar provisions are effectively seeking to protect the vested interests of the established profession by preventing that choice from being made. They are not prepared to accept that there might be lessons that we can learn from other countries, and that there may be a case for looking at arranging our legal services in a different way. It is, I regret, a blurred vision, which is not prepared to accept that there can be merit in change and diversity.
I hope that hon. Members will see that, subject to the safeguards set out in this Bill, there is great merit in allowing criminal defence services to be provided both by private practitioners—whether in independent practice or employed by law firms—and by those employed by the state. The Bar and the solicitors profession can survive on their merits. They do not need to be cocooned with restrictive practices and guarantees of state work.
§ Mr. Garnier
I am most grateful to be called to contribute to this important debate. We are at the point of collision in our deliberations, but that is not unusual when a matter is of concern to those who think about it.
The collision is between the arguments advanced in another place and the Minister's arguments, if I can use that word in connection with what he has said. The Minister had to resort to abuse. He said that lawyers were demanding that their vested interests should be protected against the freedom that he claims will be provided by the amendments that he has tabled. He also said that the amendments would allow the wider public greater access to a full range of lawyers, including both salaried state defenders and those in private practice.
I have never believed that argument by abuse is a substitute for the proper evidential and intellectual analysis of a proposal.
I bow to no man in my admiration of the Parliamentary Secretary's ability to read out unthinkingly the civil service brief with which he has been provided by the Lord Chancellor. There is no doubt that he knows how to read. However, this is not a trivial matter, despite the low attendance in the Chamber this afternoon. No matter how emollient or smooth the Minister's tone, and no matter how he puts forward the words that he read out a moment ago, not much of value or worth underlies them.
I begin by reminding the House what clauses 13 and those immediately following, headed "The Criminal Defence Service", are all about. The Legal Services Commission replaces the Legal Aid Board to run legal aid, for criminal cases via a criminal defence service, and for family/civil cases through a community legal service fund. Lawyers and other providers need a contract from the Legal Services Commission to offer services under the fund, and the Legal Services Commission has the power to make any type of contract.
In relation to criminal cases, most criminal defence service services will be provided under contract, usually at a fixed price. I fully accept the point made by the Minister, the Lord Chancellor and other loyal members of the Government and their supporters, that we are looking at a mixed system. There will not be a wholly state defender system. Some criminal defendants will enjoy the services of private practitioners, but other defendants— 1205 this will be the subject of a debate later this afternoon—will not, and they will be required to make use of the services of employed salaried state defenders.
Those contracts, to which I have referred, will cover everything from police station advice to Crown court representation. As I understand it, the Government intend that high-cost criminal defence service cases will be subject to individual contracts. The possible introduction of United States-style public defenders employed by the criminal defence service with a favoured long-term plan of mixing private and staff lawyers is envisaged, as I implied a moment ago. The courts are to decide if it is in the interests of justice to grant representation under the scheme. The powers previously enjoyed by others will now be transferred to the criminal defence service.
Eventually, legally aided defendants will be able to choose only lawyers with a contract. In high-cost cases, the choice will be limited to lawyers on a specialist panel and, in certain circumstances, defendants are to be assigned to a lawyer. Means testing will be abolished and the court will be able to make convicted defendants repay some or all of their defence costs.
As with so much of the Bill, the aspects that we are now discussing are very much a curate's egg—good in parts but, unfortunately, also bad in parts. No matter how much the Minister and his master seek to persuade the wider public that what they are doing is all good, I regret to say that a proper analysis of what they seek to do does not allow that case to succeed.
For the Opposition's part—I believe that we have the support of the Liberal Democrats—we see no evidence of the need for a criminal defence service. Nor do we understand how injecting a degree of nationalisation into criminal defence can enhance competition. Thirdly, we do not understand how the quality of criminal defence in Britain will be improved by a system of state defenders. Fourthly, we fear that the introduction of state defenders will undermine the perception and the reality of criminal justice. That is particularly true when we consider that, in future, we are likely to be faced in many trials with not only the prosecution being represented by Government officials in the form of the Crown Prosecution Service, but the defence being represented by a Government official.
You may feel, Madam Speaker, that this is a deeply interesting esoteric discussion to listen to on a Wednesday afternoon. After all the excitement of Prime Minister's Question Time, it must be hideous to have to chair a discussion about arguments over one sort of lawyer or another. [Interruption.] Fortunately, I am deaf in my left ear—like the Labour Government—and I did not hear what the Minister said. It is unlikely to matter; I heard his speech, and I do not imagine that we have much to learn from him.
On 5 July, our revered, noble and learned Lord Chancellor went to Edinburgh, the capital of his home country, to address the Common Law Judiciary Association. He made it clear—and I agree with him—that the independence of the judiciary is a cornerstone of our constitution. He went on to say—and I again agree—that one guarantee of the independence of the judiciary, 1206 and one reason why members of the public and Members of Parliament can have confidence in it, is that the profession of advocacy, whether among solicitors or barristers, is also independent.
Advocates are able—from my own experience, I believe that it is their second nature—to appear before courts and judges against public authorities, Government Departments and police forces, and fearlessly to represent their clients' interests, whether or not the clients are popular or appealing to the press, the judiciary or the jury. If I have not made my interest clear already, may I declare that I am a practising member of the Bar. It is our firm duty to represent our clients irrespective of our prospects of promotion or career or remuneration. [Interruption.]
It is permissible for Ministers to snigger when members of the Bar or solicitors make that point, and it has happened many times. They say how old-fashioned we are and how sad it is that Opposition Members should seek to protect the vested interests of the privately financed Bar. I beg to differ with that view. It is of huge constitutional importance that the independent Bar and the independent solicitors' profession on which the independent judiciary is founded and nourished should be able to appear in the courts without having to worry about whether what they do is favourable or appealing to the state.
The state already prosecutes through the Crown Prosecution Service, which, after 10 years, is beginning to find its feet. We have not yet had the happy experience of a criminal defence service. One need only look across the Atlantic to see what has occurred in the United States. Indeed, we need look only along the corridor to the other place. We can read the record of debates about the Bill conducted by Labour peers who have considerable experience of the law, and who, with all due respect to the Parliamentary Secretary, have greater experience than his.
Let me refer the House to an intervention made by Baroness Kennedy of the Shaws. As far as I recall, she is not a card-carrying member of the Conservative party; indeed, from time to time—certainly during the deliberations in which she took part in the other place—she may have doubted whether she should be a card-carrying member of the Labour party.
The noble Lady made several trenchant points, although they may not yet have sunk in for Members on the Treasury Bench, but my hon. Friend the Member for Surrey Heath (Mr. Hawkins) and I will draw them to the attention of the House—or at least to the attention of those Members who are unfortunate enough to be in the Chamber this afternoon listening to my speech. I shall paraphrase the noble Lady's remarks because I do not have her words in front of me. From her experience of talking to lawyers in the United States, she found that those who were the least experienced and the most susceptible to pressure found it necessary to join the state defender service. As a consequence, deals were done; pressures were exerted on those lawyers to deliver the list and ensure that the throughput of cases was achieved to the satisfaction of the prosecutors and the courts, and, no doubt, to the career satisfaction of the state defender—but not necessarily to the advantage of the defendant whom they were supposed to represent.
I know that the Minister is a man of immense calm and not likely to lose his temper at any stage—that would be wholly outside his character—but before he gets an ulcer, 1207 I advise him that I am as well aware as he is of clauses 16 and 37. They set out the statutory code of conduct and the overriding duties that members of the state defence service will be required to observe. However, it is one thing to write provisions in a Bill and quite another to ensure that those codes and duties are observed in the rush and heat of battle as one leads up to a case in the magistrates court or the Crown court. I fully accept that the words of the code of conduct and of clause 37, which deals with overriding duties, will be considered; no doubt, they will be stuck up in the robing rooms of every state defender office in the country. However, in due course when the Bill becomes law—sadly, in respect of this aspect of it—I shall be interested to see whether those words will be honoured more in the breach than the observance.
Of course, there will be no evidence of that. Which criminal state defender would put his hand on his heart and run round to The Sun, the Daily Mail, The Times or the Law Society Gazette to say "Oops", because he had settled the case or persuaded the client to plead guilty in order to appease the ire of the prosecutor, who had four cases in a different court and needed to get on, or to assuage the anxiety of a magistrate or a Crown court judge who needed his list to be completed?
§ Mr. John Burnett (Torridge and West Devon)
Does the hon. and learned Gentleman agree that there could be great proximity between prosecutor and defender? They might even share the same office.
§ Mr. Garnier
We do not know. I share the suspicions of the hon. Gentleman; we discussed them in Standing Committee and it is right that they should be raised again today. The prosecutor and the defender may well share an office; they may share an employment stream. If people do well and deliver for the state as a defender, they may be promoted across to the prosecution service as a district or regional prosecutor.
§ Mr. Andrew Dismore (Hendon)
Will the hon. and learned Gentleman explain the difference between the Liberal party hypothesis that a prosecutor and a defender may share the same office and the current practice in which people acting for both sides of a case often share the same chambers or even the same room? Indeed, people's progress up the prosecution ladder very much depends on whether they find favour with the CPS in defence work.
§ Mr. Garnier
Let me assist the hon. Gentleman, who claims to be a highly experienced solicitor—as I am sure he is. He may well have instructed barristers from the same chambers in different cases—for example, on one occasion acting for a plaintiff and on another acting for a defendant in a personal injury matter. I do not know what the hon. Gentleman's experience is of criminal cases, but I offer him an example from my own practice.
I am a defamation practitioner. There are not a huge number of defamation practitioners at the Bar of England and Wales—so, inevitably, there are cases in which barristers from my set of chambers act for both sides. However, the great distinction between members of my chambers and members of the criminal defence service and the criminal prosecution service is that my friends in chambers and I are self-employed: we are independent 1208 economic and intellectual units. I do not owe anything other than a duty of courtesy and the normal professional duties to the court to a colleague in chambers when I am against him in a contested matter.
I do not know whether the hon. Member for Hendon has had the opportunity to act in a libel case, but let me tell him that often the hardest-fought fights between barristers take place between opponents who happen to be in the same set of chambers. A barrister survives and gets his next brief by virtue of his reputation as an independent and fearless advocate on behalf of his client. He does not recover fees or get another brief because he has greased up to some paymaster, or because he has managed to ingratiate himself with some state provider of funds. [Interruption.]
It is easy to snigger. The hon. Member for Streatham (Mr. Hill), for whom I have the highest admiration, has learned a lot over the past year, since becoming a Whip and joining the legal services team. However, as I look across the Chamber at the right hon. Member for Llanelli (Mr. Davies), who is an experienced advocate, I have a suspicion that he and I, despite our party political differences, and other members of the Bar and members of the solicitors profession—perhaps with the exception of the hon. Member for Hendon—share a certain understanding of the way in which the independent advocate exercises his duties and carries out his work. My fear is that, if the Government have their way, the way in which the right hon. Gentleman and I have carried out our job in respect of both criminal and civil defendants will be made far more difficult.
There is no evidence of the need for a criminal defence service. It might be said that the Chancellor needs to save money, or at least not to increase expenditure—all Governments need to keep control of expenditure. However, there is no empirical evidence that I have seen, or that the Government have been able to demonstrate to the House or any other interested body, that there is a need for a criminal defence service. There are plenty of private professional advocates who are willing and available to act for defendants in criminal matters.
The Parliamentary Secretary says that it is not the duty of the state to guarantee work for private lawyers. Of course it is not, and no one has ever suggested that it is. The best will do well and the worst will not. There is no requirement in the private professions for the state to hand out free money—a free ride—to either solicitor advocates or banister advocates who act for defendants. It is a simple canard for the Government to suggest that there is an overwhelming need—or any need—for the establishment of a criminal defence service.
The Labour Government have wholeheartedly embraced the Conservative ethos of privatisation. They call it different names, such as private-public partnerships, and they use the language of "Alice in Wonderland" and George Orwell's "Nineteen Eighty-four" to confuse the public and to hide their true intentions, but there is no question but that they are a pale-pink Conservative Government—not a good pale-pink Conservative Government, if I, a pale-pink Conservative, can say that—who are doing their best to understand the language of conservatism without knowing what it is all about. The Government have been found out in relation to clause 13, and the other place, in its refusal to accept this amendment, has found them out as well.
1209 4.30 pm
By resisting the Lords' refusal to accept this House's amendment to this clause, the Government are injecting a degree of nationalisation into the criminal defence system. The Government talk privatisation, the free market and competition. However, because they do not understand what they are doing, they have fallen into the trap of nationalising part of the legal system. They say that they are making the change because it is right and it is what is required. Would that the Government knew what they were doing. If they looked at what is happening both here and in other countries and if they compared like with like, they would understand that they have fallen into a trap of their own making. There is no need for a nationalised criminal defence service.
The Government claim that the quality of criminal defence in this country will be improved by a system of state defenders. They think that asserting it proves the case, but there is no evidence to back up the assertion. I listened carefully to the Parliamentary Secretary—I always listen carefully to him and I read his articles in the Leicester Mercury every week. However, nothing that he has said, written or caused to be published—if I may resort to the language of a pompous barrister, which is what I am—
§ Mr. Garnier
I am glad that the Parliamentary Secretary was listening to that part of my remarks at least.
None of the Minister's utterances has persuaded me that the quality of the criminal defence system in this country will be improved by a system of state defenders. I suggest that the service will deteriorate and diminish.
I accepted at the outset that the Government envisage a mixed system comprising salaried defenders and contracts for private practitioners. The Minister cited the example of the Scottish experience. I always shudder when Ministers—particularly Ministers from the Lord Chancellor's Department—use the expression "the Scottish experience". It takes me back to a 1996 speech made by the Lord Chancellor, then shadow Lord Chancellor, about the Scottish experiment with conditional fee arrangements, which he deprecated. Amazingly, by May 1997, he had done a complete volte face and thought that anything emerging from Scotland was wonderful.
The Minister said that 22 per cent. of defence clients choose the equivalent of the criminal defence service in Scotland. So what? I am not sure that that tells us anything other than that 22 per cent. of clients choose the criminal defence service. The Minister did not tell us why they choose the service, where those clients come from or whether other choices were available to them. Is it the case that in the centres of Glasgow and Edinburgh there is a choice between private practitioners and state defenders, but, because of the excellence of the criminal defence service, 22 per cent. of clients choose the CDS or its equivalent in Scotland?
Do clients choose that service because—as we suspect will happen in this country—they must retain the lawyer with whom they were presented or whom they were required to choose when they were beaten up or drunk and were brought to the police station at 2 am? We do not know. It was a totally useless piece of information 1210 that no doubt satisfied the Minister. Ministers like statistics, and civil servants like writing numbers into Ministers' speeches. We need to understand what is behind the statistics, and the House does not have any inkling of whether the Minister understands what that 22 per cent. from the Scottish example means.
The Parliamentary Secretary went on to say that the policy is based on freedom of choice, and, in doing, so he demonstrated a point that I made not so long ago, which is that there is a total inability to understand what lies behind the Government's jargon. I have no doubt that the hon. Gentleman is a great speaker. I have heard him speak on a number of occasions. I prefer it when he says nothing, but none the less, when he speaks, absolutely no one in the whole county of Leicestershire can do anything but admire what he has to say and the way in which he says it. However, to say that the Government's policy is based on arguments related to freedom of choice is absurd, if not obscene.
"Words mean what I say they mean." Do you remember, Mr. Deputy Speaker, your schoolboy days when you read "Alice in Wonderland", or your teenage days when you read George Orwell's "Nineteen Eighty-four"? It is absurd, obscene and ridiculous for the Government to use the arguments that they have used to seek to defend their resistance to the refusal of the other place to swallow the amendment proposed by this House.
The Minister went on to say that those who think as I do were insulting the thousands of employed lawyers and traducing their qualities and professional standards. There are, as yet, no employees of the criminal defence service, and our only experiences of a criminal defence service are those in Scotland, the United States and Canada, none of which is wholly similar. There may well be other jurisdictions where there are state defender services. I think of the former Soviet Union and the People's Republic of China, which are not examples that I imagine the Minister will rush to embrace to support the arguments that he has limply put forward.
I would have greater confidence in what the Minister has said if he could tell us how many employees the criminal defence service will have and how much money his Department or the Treasury will give the service. I want to know, and the public have a right to know, what the Government are proposing. I have listened to many of the debates in the other place and to all the debates in Committee and on the Floor of this House, and I suspect that the short answer is that the Government simply do not have a clue. They are pushing up a balloon and hoping that it will float gently into the sky and that everyone will marvel at the tightness of this great rubber sphere.
§ Mr. Garnier
We shall turn to the Minister's private life in a moment, because that has some bearing on what we may yet discuss. What is inside the balloon is no more than Government hot air.
As a fourth argument against this aspect of the Bill, my noble and learned Friend Lord Kingsland suggested in the other place thatthe introduction of state defenders will certainly undermine the perception, and also perhaps the reality, of criminal justice."—[Official Report, House of Lords, 14 July 1999; Vol. 604, c. 418.]1211 Cogent speeches were made by Lord Kingsland and Lord Thomas of Gresford, to whom, no doubt, the hon. Member for Torridge and West Devon (Mr. Burnett) will refer if he manages to catch your eye, Mr. Deputy Speaker. They put forward arguments that wholly undermined what I am gracious enough to call the Government's arguments for the criminal defence service and in support of their resistance to the Lords proposal. Apart from being, to say the very least, tiresome, the Government's arguments in favour of resisting the Lords proposal are ill-considered.
One need only read the arguments not only of my noble Friend Lord Kingsland and Lord Thomas of Gresford, but of Lord Hutchinson, who said:Our democracy and our fundamental freedoms depend on the rule of law. The law is upheld first by an independent and uncorrupt judiciary. Secondly, it is upheld by advocates—barristers and solicitors—without whom the judges could not operate and from among whom the judges are drawn."—[Official Report, House of Lords, 14 July 1999; Vol. 604, c. 416.]That draws me back to a very good point made by the right hon. Member for Llanelli (Mr. Davies) in earlier debates that without an independent advocacy profession there can be no independent minds from which to draw an independent judiciary.
I read with great care the Lord Chancellor's speech in Edinburgh on 5 July. I agree with pretty well everything he said in it. My only concern is that he has not learned the lessons that he is teaching us all and which he sets out in that speech, much of which followed the remark of the right hon. Member for Llanelli in the House some weeks ago, to which I referred. The establishment, even in part, as the Government propose, of a criminal defence service will lead to the damaging of the independent advocate and therefore to the damaging of the independent judiciary—two concepts which I and my party particularly revere.
It is perfectly possible for the Government to sneer. They frequently do; they do not have to listen to arguments because they have a huge majority. It is perfectly possible for them to pooh-pooh all that Opposition Members say and to try to persuade both the public and supporters in this House that all this is from a tired, middle-aged, white, middle-class barrister who is working out his frustrations at the Government for having been elected in May 1997. I am perfectly prepared to salute the Government's huge majority. What I deprecate is the way in which they use it like a scatter-gun to damage our constitution and our legal processes.
I urge all right hon. and hon. Members to agree with my noble Friend Lord Kingsland, Lord Thomas of Gresford and all the majority in the other House who, having thought about the matter and having listened to the issues and the way in which they were debated on 14 July, would assist me in resisting the Government's decision to strike down the House of Lords proposals.
§ Mr. Denzil Davies (Llanelli)
I rise to speak briefly in support of the Lords proposal that the Parliamentary Secretary is seeking to oppose. As I understand it, it would remove from the Bill the provision that would enable this or any future Government to set up a criminal defence service.
I practise occasionally in the criminal courts, and declare an interest as an advocate. I am not asking for a ruling from the Chair, but I am not sure why I need to 1212 declare an interest. I speak as a Member of Parliament with some expertise in legal matters, but as one who is concerned about the rule of law and this country's criminal justice system.
My hon. Friend the Parliamentary Secretary mentioned those in the other House with a blatant vested interest. I do not know to whom he was referring. I hope that he was not referring to Baroness Kennedy, for instance, who has been mentioned. I hope that he was not referring to Lord Hutchinson, who, as Jeremy Hutchinson, was an extremely distinguished defence advocate in cases involving the state and always conducted himself with great artistry and sophistication—qualities which he displayed in the speeches in the other place, which are well worth reading. I hope that my hon. Friend was not referring to those people. I hope that he is not thinking that I represent a blatant vested interest as I make my few brief remarks.
I spoke on Second Reading and I shall not repeat myself. My arguments have been made in the other place, and they have been made in this place by the hon. and learned Member for Harborough (Mr. Garnier).
Perhaps I am an old romantic, and perhaps I am old-fashioned, but I believe that the defence of those accused of crimes by the state should not be in the hands of employees of the state. I understand that there will be a pilot scheme and that a mixed system will then be set up, but I believe that—Governments being Governments and bureaucracies being bureaucracies—the movement that is under way will continue until, eventually, the defence system is almost wholly state run.
Essentially, the criminal justice system is already dominated by the state. In effect, all crimes are crimes against the state. The prosecutor is the state and, with the development of the Crown Prosecution Service—to which I do not object, and which appears to be putting its house in order—prosecution advocates will increasingly be employees of the state. Judges, who are the salt of the earth, are, ultimately, employees of the state.
§ Mr. Nick Hawkins (Surrey Heath)
Under the separation of powers doctrine, the role of the judiciary is entirely separate from that of the state. However, the difficulty that we perceive, which was mentioned by many hon. Members and by some Government supporters in the other place—including Baroness Kennedy of the Shaws, as my hon. and learned Friend the Member for Harborough (Mr. Garnier) said—is that salaried state employees in a nationalised criminal defence service may be put under pressure to fit in with the system. Is not that a cause for concern? Is not the danger of such pressure wholly different from the separation of the role of the judiciary?
§ Mr. Davies
Well, perhaps. There was a lot in that short intervention. Perhaps the hon. Gentleman will develop and pursue it.
I shall be more factual, perhaps, and simply say that judges are employed by the state. Recorders—I believe that the hon. and learned Member for Harborough is now a recorder or assistant recorder—are employed by 1213 the state. Stipendiary magistrates are employed by the state. We still have juries, which are not employed by the state, but for how long? Who knows?
§ Mr. Garnier
The right hon. Gentleman has certainly not upset me. He is right—I am an assistant recorder, and I pay tribute to the good sense of the present Lord Chancellor in appointing me one. However, the distinction that one must draw between judges and other employees is that although assistant recorders, recorders and full-time judges are paid by the state, they are not, in the strict sense, employed by the state and they do not owe their first allegiance to the state. They owe their allegiance to the oath of office that they take.
§ Mr. Davies
That may be so, but, ultimately, they are the creatures of the state in the criminal justice system; they have to be.
§ Mr. Dominic Grieve (Beaconsfield)
A person brought before a Crown court inevitably perceives the judiciary as an arm and extension of the state.
§ Mr. Davies
The hon. Gentleman puts it very well. Juries, not being "employed", are independent of the state. Who knows how long we shall have juries? The Government are working at it—they are trying to reduce the function of juries. Justices of the peace and lay magistrates are still independent of the state. I do not know whether they will gradually be replaced, if the state can afford it, by stipendiaries. It is easier to have stipendiaries around than lay magistrates. However, they are certainly more expensive.
So, inevitably, we shall have a criminal justice system with a state dominance. The proposition now is that the defence of the accused as well is to be in the hands of the state. The defence advocate is to be a state employee. As I have said, I am old-fashioned and perhaps romantic, but I am not a blatant vested interest. Perhaps I am old-fashioned to believe that what I have described is not desirable. However, as I understand it, that is what my hon. Friend the Minister is proposing.
If we go down the road of state dominance, there will be repercussions and not only for the accused, as the hon. and learned Member for Harborough said. In future, an advocate could spend the whole of his or her professional life working for the state, for the state prosecution service for a time and then for the state defence service. Twenty or 30 years of that person's professional life would be spent working as an advocate in the criminal justice system for the state.
In the main, judges in the Crown courts, the criminal courts, are inevitably and rightly chosen from advocates who have experience of criminal cases.
§ Mr. Davies
I will in a moment. I hope that the hon. Gentleman's next intervention will not be as deep and heavy as his last one.
1214 Judges will be chosen from practitioners with experience of criminal cases, who will have spent all their professional life working for the state prosecution and defence services. That is unhealthy.
§ Mr. Hawkins
As the right hon. Gentleman appreciates, I very much agree with the argument that he is developing. Would he accept that it might be even more dangerous if advocates spent not half of their career, as he suggests, in the nationalised criminal defence service and the other half in the Crown Prosecution Service, but spent their entire career working for just one of those services? Someone may spend his entire career in a nationalised criminal defence service, becoming entirely hidebound by the pressures that that state employment may bring.
§ Mr. Davies
That is a danger as well. The point is well made.
I move on to evidence and procedure. Perhaps more so in criminal matters than anywhere else, the rules of evidence, especially, and those of procedure are extremely important. Those rules grow out of cases, situations and lawyers' perceptions. There is a danger if all the lawyers involved are working for the state and if all their experience is in a state service. At the end of the day, the state is the prosecutor. The rules of evidence, the rules of procedure and all the books that are written about evidence and procedure will be dominated by advocates who have worked for the state in the criminal justice system.
I shall digress before I resume my place. Years ago, I was rummaging in the Library when I came across a book with an extraordinary title. I still cannot believe it. I still think that perhaps I dreamt it or I was half asleep. Believe it or not, the book was called "Vishinski on Evidence". We are living in a period where history has come to an end. For those of the present period, I shall explain that Vishinski was Stalin's chief prosecutor during the 1930s show trials. I think that he ended up for a short time as the Soviet Foreign Minister, either before or after Molotov. I have not been able to find the book since. Perhaps it has been removed.
I thought, "What did Vishinski know about evidence?" I then thought, "Vishinski knew everything about evidence" because he was the evidence. He made the evidence. He prosecuted and probably there was no defence service. Well, perhaps there was some sort of Stalinist defence service.
We must be careful. I do not like the word "nationalising". I think that that is the sort of word that the hon. and learned Member for Harborough would use. Did he talk about pale pink? Once we make the entire criminal justice system become dominated by the state, we could have the difficulties and problems that I have described.
I was going to say that I hope my hon. Friend the Parliamentary Secretary will think again, but we are not on Report. I am sure that his instructions from the Lord Chancellor contain in large capital letters the words, "Resist. Resist. Resist." I shall not ask him to think again—perhaps he knows, anyway. I say to him in all honesty and good faith, not as a blatant vested interest, that it saddens me that my party and my right hon. and 1215 hon. Friends are going down this road and enabling the state system to dominate completely the defence of criminals and the rule of law.
§ Mr. Burnett
I am particularly delighted to follow the right hon. Member for Llanelli (Mr. Davies), who made a marvellous speech. I should declare an interest: I am a solicitor, but not a practising one.
The grouped amendments deal with the Government's intention to set up through the Bill a state defender system. It has been opposed by me and my party in this House and in the other place. The Government claim that defendants will always have a choice between an independent lawyer and a lawyer employed by the criminal defence service.
I wait to hear from the Minister what notice defendants will be given of that option. What will they be told? When will they be told? By whom will they be told of that choice? Will there be a statutory duty on any individual to give proper and complete notice of the choice? We are dealing with the rights of people accused of crimes—people who will have the vast apparatus and resources of the state arraigned against them.
I pay tribute to my noble Friends Lord Thomas of Gresford and Lord Hutchinson of Lullington who, as the right hon. Member for Llanelli and the hon. and learned Member for Harborough (Mr. Garnier) both acknowledged, made excellent contributions in the debate in the other place. I thank both for their generosity.
My two noble Friends made cogent and effective speeches reported in columns 412 and 416 of Hansard dated 14 July 1999. I also commend to the House the speech of Lord Kingsland, reported at column 418. His speech was clear, concise and compelling. To my mind he made four bulls-eye points, which I shall summarise.
First, Lord Kingsland argued, there is no evidence of a need for a state salaried defender system. Secondly, he asked how the introduction of a partially nationalised system would enhance competition. Thirdly, he asked what evidence there was that its introduction would improve the quality of criminal justice. Finally, Lord Kingsland rightly asserted that the introduction of state defenders would undermine the perception and perhaps the reality of criminal justice.
We shall have the state on both sides of a case—the prosecution, rightly, represented by the Crown Prosecution Service, and the defendant represented by a state defendant. To most of us in the House, that is a glaring conflict of interest.
We have debated these matters long and hard at many stages in the House, and they have been debated at length in the other place. This is not a plea for the retention of restrictive practices. Independent lawyers compete fiercely and keenly with one another. This is a plea for justice, and the Government would be wise to heed it.
§ 5 pm
§ Mr. Dismore
I ought to declare an interest: I am a solicitor, although I have not undertaken a great deal of criminal practice recently. However, I have practised in the criminal courts.
I am grateful to my hon. Friend the Minister for referring to my early-day motion supporting what the Government are trying to achieve, which has been signed 1216 by 58 parliamentary colleagues from both sides of the House. I am afraid that I was not in the Chamber when he mentioned it, but I am grateful for his recognition of the strength of feeling in the House that it reflects. Indeed, he had completed his remarks when I entered the Chamber and the hon. and learned Member for Harborough (Mr. Garnier) was reaching his peroration. My initial reaction was to ask, "Where's the beef in that argument?" I have listened to many hours of debate on this issue in Committee and in the Chamber and, so far, I have not detected any meat in it, except for the beef made on behalf of the barristers and Queen's counsel protection club, which the hon. and learned Member represents.
I regret that I have always found the barrister profession to be very conservative and it inevitably rejects the arguments when any sensible reform of the legal system—such as the extension of conditional fees under the Bill or rights of audience for employed advocates—is put forward. Every single attempt to open up the profession is resisted by the Bar, and it is crying wolf yet again.
§ Mr. Garnier
I shall not take the bait in respect of members of the barrister profession, because I do not think that I need to bother with that. Would the hon. Gentleman care to look at the Division list of 14 July, when this matter was debated in the other place? Can he tell me the percentage of barristers who voted for the amendment tabled by Lord Thomas? I think that he will find that it is a tiny percentage of the overall majority. His argument is not improved by his abusiveness, and he ought to try to concentrate on the underlying arguments. I do not know whether that idea appeals to him.
§ Mr. Dismore
The hon. and learned Gentleman's intervention does not take the matter a great deal further. I simply said that whenever a law reform comes before the House the barrister profession seems to be agin it. I was about to address an argument relating to clauses 37 and 16 that he touched on briefly, but did not develop.
A duty of impartiality and independence is imposed on advocates for the first time by clause 37. That may have been a professional requirement, but it will become a statutory duty as well. The Bill goes beyond that, because clause 16 provides additional protection through the code of conduct, which will be subject to approval by the House. It will put in placeduties to protect the interests of the individuals for whom services are provided …duties to avoid conflicts of interest …duties of confidentiality".The duty to the court is set out in clause 37, and all those matters will be dealt with by the code of conduct. The Bill provides much stronger protection for advocates, whether they be employed or not employed, against improper resistance from whatever quarter.
§ Mr. Grieve
Returning to the theme of "Vishinski on Evidence", the hon. Gentleman will agree that the constitution of the legal profession in the Soviet Union always provided protections on paper, including that of the role of lawyers in defending individuals, but they were of absolutely no importance because no such ethos existed.
§ Mr. Dismore
I am grateful to the hon. Gentleman for that intervention because I studied the Chinese legal 1217 system when I was an undergraduate. My recollection is that it is based on very different premises from those on which our own common law system is based. As he says, the statutory rights of independence such as we have here are not incorporated in it. Indeed, it presumes guilt, and people have to argue that they do not deserve such severe punishment. He has not done much for his argument by referring to those totalitarian regimes. Their systems do not compare to the system that exists in this country, which will continue to exist after the Government amendments are agreed to and the Bill becomes law.
§ Mr. Hawkins
The hon. Gentleman is missing the point—probably deliberately and consciously—made by my hon. Friend the Member for Beaconsfield (Mr. Grieve). The point is that, however much things are put in a code, as the right hon. Member for Llanelli (Mr. Davies) said earlier, one cannot alter the ethos of a profession. If the hon. Gentleman could have looked behind him and seen how strongly the right hon. Member for Llanelli was disagreeing with the aspersions that he was casting on the traditions and reforms that the independent Bar has introduced, he would have realised that his case is not supported, even by those on his own Benches.
§ Mr. Dismore
I disagree with the hon. Gentleman. If the House divides later, we shall see where the support lies. Although, in the past, we have had professional requirements, clause 37 now introduces statutory requirements, which go as far as, if not further than, existing professional requirements.
We have heard a lot of humbug about the position of salaried state employees. The so-called "independent" Bar gets practically all of its not inconsiderable income from state funds, whether from the Crown Prosecution Service or from legal aid for defence work. In practice, it makes little difference whether the money comes from that direction or as a salary. It is a false distinction to draw.
Moreover, a salaried employee is in a stronger position of independence than somebody in private practice, who is subject to pressures to earn a living that do not exist for somebody on a salary. It is extremely important that we consider those distinctions. For example, somebody in private practice must always look to see where his next case will come from. If anything, he is more likely to want to suck up to those providing the work than somebody who is given the work as part of his job.
One important factor is the job security that a salaried employee has through existing employment protection rights, which will be strengthened by the Government if the Employment Relations Bill, which is to be considered after this debate, is enacted. One of my constituents is a CPS employee, and she has felt it appropriate to bring a case before an employment tribunal against the CPS to enforce her employment rights, without fear or favour in doing so. That right would not be available to an independent barrister, who may, for some reason, find himself struck off the CPS list simply because the CPS has decided that it no longer likes his work. Therefore, independent contractors have rather less protection against the pressures about which we have heard a great deal from the Opposition than employed advocates.
§ Mr. Grieve
Does not the hon. Gentleman make a compelling point against his own case? If an independent 1218 barrister working for the CPS loses his CPS work, he can always return to the rest of his practice. A criticism that has often been made of, for instance, Old Bailey practitioners, who do only prosecution work, is that they are too hand-in-glove with their paymasters. Is not that precisely what will happen, but even worse, in relation to a criminal defence service? The hon. Gentleman's comments destroy his own case.
§ Mr. Dismore
The hon. Gentleman makes my case for me. If we have in independent private practice people who depend on that sort of work, without the current employment protection laws they will inevitably do the sucking up to which the hon. Gentleman referred. We are strengthening our employment laws, and we have the necessary duties in clause 37 and a code of practice in clause 16. If an employed barrister were, for some reason, subject to disciplinary action for defending an individual too fearlessly, he would be extremely likely to rely, either through the judicial review proceedings, on his overriding duties under clause 37, or on the code of practice in clause 16, or would have an absolute defence in any disciplinary proceedings before an employment tribunal.
We have heard a lot of humbug from Conservative Members. All that is proposed for the criminal defence service is a pilot scheme. I think that it will be an interesting development in our legal system. It will potentially lead to a mixed economy and valid competition to the private Bar, which has had its way for far too long. I welcome the Government's proposals.
§ Mr. Grieve
As I have done on several occasions in debates on this legislation, I must first declare an interest as a practising member of the Bar. I apologise for not hearing the beginning of the Minister's speech as I was delayed, although familiarity with his arguments will have come from the many hours that were spent listening to his predecessor in Committee. I recollect that the Minister was also present for much of the time.
The issue was put succinctly by the right hon. Member for Llanelli (Mr. Davies). People who are caught up in the criminal justice system are gradually being ground up, perhaps justifiably, by a Moloch descending upon them with the ultimate intention of punishing them for misdeeds of which they are accused. As the right hon. Gentleman correctly said, within the bounds of what is humanly feasible, we have in this country, by dint partly of accident and partly of tradition, tried to erect a system of justice that is fair and impartial, especially in respect of the judiciary.
Nevertheless, it remains the case that for those on the receiving end, the whole system—including the prosecutor and the judge—is an arm of the state. In reality, that is so. That arm of the state may be designed or intended only to punish them for their wrongdoings if they are guilty, but it is the system into which they have been dragged. In those circumstances, whether paid for by the accused or through the legal aid system, the only person who will stand up for them and be their champion is their representative, be he the solicitor whom they have instructed or, if the matter is in the Crown court, their advocate—the barrister. If, in the future, it is their solicitor advocate, so be it. The independent advocate will represent their interests.
Those who practise in the criminal courts know that, in the vast majority of cases, the people who are accused of murder and grave offences, such as robbery and other 1219 headline offences, are poor, inadequate, inarticulate, eccentric, or mildly or severely deranged and have no one else to represent their interests apart from those who, through the legal aid system, have been appointed to act for them.
§ Mr. Hawkins
Does my hon. Friend agree that one of the most powerful points that Baroness Kennedy of The Shaws made when she attacked the Government's proposals was to ask who, under the new system, would represent clients who allege serious miscarriages of justice, and how could advocates represent defendants if a specific and specialised knowledge of, for example, mental health law was required? Will people with those specific difficulties be unable to be represented properly because there will not be sufficient expertise in the new nationalised criminal defence service?
§ Mr. Grieve
I agree with hon. Friend. I concede the point that some of the details of this proposal may enable the problems that undoubtedly exist to be bypassed. However, I stick to the general point that concerns me even more, which is about the ethics behind the system that it is suggested should now be established. I do not accept that a public defender system can adequately and properly meet the needs of the accused person, so as to reassure him and me—leaving aside my role as a barrister, but acting as a legislator, a Member of the House and a member of the public—that the role is being adequately discharged by those who have been appointed to do the job.
I come back to what I said to the hon. Member for Hendon (Mr. Dismore) about the prosecution system. I do not seek to draw a direct comparison between the two, but it is instructive that there are pointers to the dangers of the public defender system in the public prosecutor system, albeit that the two are different. It is well known in my profession that excessive identification with an individual barrister who has been retained to do only prosecuting rather than defending work always causes concern among his fellow professionals. This is an historical matter that goes back long before the CPS.
One of the great strengths of our system of advocacy and justice, which is much commented on by foreigners who come here to observe it, is the interchangeability of advocacy between those who prosecute and those who defend. When that interchangeability diminishes, especially at an advocacy level—as it has done over the years for those who are retained almost non-stop to prosecute—anxieties creep in about impartiality. That concerns the prosecutor's role, but it is an interesting example to look at when one considers the whole issue of the proposed public defender service. What are the criteria by which the success of the public defender will be judged? Will it be his fearless championing of the individual whom he is representing, or will it be his ability to dispose of business quickly through the courts, thereby leading to a lessening of costs, which underpins much of what the Bill is all about? I think that the pressures will be for the latter.
To what extent will the public defender have freedom of action, notwithstanding the grandiloquent words that may be in the Bill or in the rules that will be placed before the House for its approval? There will be continuous 1220 pressures on the public defender of a completely different order from those on independent persons who are appointed to represent an accused and are being paid under the legal aid system.
I do not accept that there are any benefits to be derived from the public defender system. Indeed, I do not understand what the benefits are, or even from what point they are envisaged to start. We shall address some of these matters in the next debate, which, in some ways, concerns me even more and points to the iniquities of the proposed system.
§ Mr. Hawkins
Does my hon. Friend agree that the issue arises of the parallel to which the right hon. Member for Llanelli (Mr. Davies) adverted? The irony is that the Minister is constrained by the same concerns that we are all expressing about the criminal defence service. As the right hon. Gentleman said, someone who speaks on behalf of the state is constrained because he is unable to depart from his brief. He is instructed to resist, and not to take account of the arguments that the right hon. Gentleman and my hon. Friend are making.
§ Mr. Grieve
My hon. Friend makes a telling point. Having recently been appointed to the Front Bench of my party on a matter unrelated to this one, on which I continue to speech as a Back Bencher, I am fully aware as a parliamentarian of how one's independence of judgment is inevitably fettered, and perhaps properly so, by the calls of loyalty and discipline in the party structure. I am sure that the Minister suffers that fate every day of the week. That is precisely the point. That may be appropriate in this forum, but the person who is appointed to represent an accused person who is being dragged through the criminal justice system should not be placed under such constraints. I do not see how he can escape being under such constraints if there is a public defender system, as is envisaged.
The Minister says that other countries have adopted such systems, and that the world has not come to an end. Indeed, it has been suggested in the other place that they work quite well. As a lawyer practising in this country, but with plenty of international contacts—especially on the continent of Europe—I can only say that I have not heard it suggested that the independence of our defence system is something about which we ought to be concerned. Indeed, it is repeatedly held up as a model of its kind.
We have debated this matter at great length, and I do not wish to take up too much of the House's time. We have debated it on Second Reading, in Committee and on Report. Perhaps the Minister should note this, however. A number of amendments that the Government did not like were tabled in the other place when the Bill began its progress. Independent-minded Members of the other place, while accepting a good many Government amendments, concentrated their fire on certain key issues. The Government would do well to consider those issues carefully, because they go to the heart of the independence of the criminal justice system—and, indeed, the assurance that must be given to those accused of crimes that they will be treated fairly.
1221 This measure smacks of unfairness. As such, it is a retrograde step, and I do not understand the justification for it. I wish that the Minister would think again.
Mr. Deputy Speaker
Order. I am happy to call the Minister, if he is winding up the debate, but I think that the Opposition spokesman wants to speak first.
§ Mr. Hawkins
Thank you, Mr. Deputy Speaker.
I think—especially as the Minister invited me to expand on some of the concerns that were being expressed—that I should return to some of what was said about this part of the Bill on Second Reading. At that time, I expressed such concerns from the Back Benches, but it should be remembered that they were expressed by hon. Members on both sides of the House, as they have been again today.
The Government suggest that the Bill will improve access to justice, but Members on both sides of both Houses have voiced the fear that it will achieve the precise opposite. My hon. and learned Friend the Member for Harborough (Mr. Garnier) was right to quote the character in "Alice" who said, "A word means what I want it to mean", and to say that the Bill uses the language of George Orwell—newspeak. As in so many other areas of their policy, the Government believe that it is enough to cause a title to be chosen for a Bill that sounds wonderful—that sounds as if the Bill is helping people. That reminds me of an exchange between Sir Humphrey and the Minister in "Yes Minister". Sir Humphrey says, "Always deal with the most difficult bit in the title, Minister." That is clearly the lesson that the Lord Chancellor wished to convey in his choice of title for this Bill.
As has been pointed out yet again today by my hon. and learned Friend the Member for Harborough, my hon. Friend the Member for Beaconsfield (Mr. Grieve), the hon. Member for Torridge and West Devon (Mr. Burnett) and the right hon. Member for Llanelli (Mr. Davies), the Bill will result in a denial of access to justice. Neither my right hon. and hon. Friends nor I accept that the Bill will enable a criminal defence service properly to represent defendants involved in particularly difficult cases—cases involving allegations of miscarriages of justice or malpractice on the part of police officers, or involving specialised questions concerning mental health law.
It would not be enough for Opposition Members in the House of Commons, whether Liberal Democrats or Conservatives, to express such concerns. The Minister and the Lord Chancellor must take account of the fact that far more distinguished lawyers than us on the Government Benches in another place—distinguished barristers such as Baroness Kennedy of The Shaws—have expressed precisely the same concerns, in extremely strong terms. Let me again quote what Lady Kennedy said in the first debate in another place. I quoted it when I spoke from the Back Benches on the Bill. She said:I know that our Lord Chancellor is committed to human rights … But might he also be creating another legacy—the introduction of a system which can only disadvantage the many, particularly the poor?"—[Official Report, House of Lords, 14 December 1998; Vol. 595, c. 1158.]1222 I urge the Minister and his right hon. and noble Friend to think again. Surely, when as distinguished a human rights lawyer as Lady Kennedy, with an impeccable pedigree in the field, says that the system can only disadvantage the many, particularly the poor, that is the worst criticism that anyone could make of a Government whom the Prime Minister claims—so often that it has almost become a cliché—to be a Government of the many, not the few. Lady Kennedy has said that the Bill will disadvantage the many, particularly the poor, and I feel that no stronger condemnation could be expressed.
As was said by Lord Thomas of Gresford in the most recent debate in another place, speaking for the Liberal Democrats, it is essential to recognise the dangers in what the Government propose, notwithstanding the canards of the hon. Member for Hendon (Mr. Dismore) about protectionism on the part of the Bar. As my hon. and learned Friend the Member for Harborough pointed out, those who consult the voting list will see that, when these proposals were defeated in another place by a large majority—no less than 141 to 85—most of those who voted were life peers and non-lawyers.
The present Government are committed to the politics of envy, and to the abolition of the voting rights of hereditary peers; but they still want a Chamber containing life peers. The Minister said earlier, "We believe in a revising Chamber", but he does not want that really. We are back to "Alice": the Government want a revising Chamber only when it does not seek to revise. What they really want is a poodle—or perhaps, in this instance, Derry's dachshund. What they really want is a revising Chamber that never defeats the Government: a Chamber that says, "We may have concerns, but we will let this go through on the nod. We have faith."
It is clear that the other place as currently constituted is wiser than that. It wishes to behave as a real revising Chamber. When it sees the Government introducing legislation that will clearly not be advantageous to the public, it wishes to say so. Members on both sides of both Houses are determined to demonstrate to the Government that this is an unhelpful and damaging proposal.
If the Government, the Lord Chancellor and the Minister really know in their heart of hearts that the Bill will not increase access to justice, and that it is damaging, what is it really all about? The hon. Member for Hendon asked, "Where is the beef?" The beef is here: we know that the Lord Chancellor is presenting proposals in government that he specifically criticised in opposition. As I pointed out on Second Reading, the Lord Chancellor—then shadow Lord Chancellor—made a speech criticising proposals of this kind. He has gone back on that now, because he is constrained by Her Majesty's Treasury. He believes that this is a cost-saving measure. I believe that, in practice, the criminal defence service will not achieve even that, and I share all the concerns that have been expressed. The right hon. Member for Llanelli nods.
On Second Reading, I suggested that the Government were in danger of creating the same problems that we experienced with the Child Support Agency. Since I made that speech, the Government have said that they will improve the CSA. The Act that established it was introduced with all-party support and with the best of intentions, but we know that the road to hell is paved with good intentions. The Government claim to be keen to deal with the waste caused by bureaucracy; yet a Government 1223 who, as my hon. and learned Friend the Member for Harborough pointed out, have claimed to be convinced of the merits of privatisation and the involvement of the private sector now say that the legal profession is different, and that part of it must be nationalised. They say that they want to go in the opposite direction to all their other policies. It would have been far more consistent if the Government had stuck to the Lord Chancellor's line when he was shadow Lord Chancellor, and not introduced such damaging proposals.
Our case has been made for us not only by Opposition Members, but by the right hon. Member for Llanelli and Labour peers in another place. I hope that, even at this late stage, the Government may have second thoughts and decide not to proceed with the proposals. I ask hon. Members on both sides of the House who feel strongly about the matter to support what their lordships have done in another place and to reject the Government's proposals.
§ Mr. Vaz
This has been an interesting debate, not least because of the fact that there is a bit of confusion as to who is the spokesperson for the Opposition. It seems that the hon. Member for Surrey Heath (Mr. Hawkins) has been shoved aside and we have the return of the hon. and learned Member for Harborough (Mr. Garnier), who was very keen to criticise and to pepper his arguments with personal abuse.
The hon. and learned Gentleman referred to me reading out the civil service brief. Some people will never in their careers have the opportunity to be able to do that. They will spend their lives wandering around Market Harborough bitterly, trying to be recognised by their constituents. The hon. and learned Gentleman described himself as a pompous barrister. The cheers from Labour Members and, indeed, some Opposition Members demonstrate the fact that most people would agree with that description. I say nothing more about it.
In Edinburgh, the Lord Chancellor made an excellent speech, which the hon. and learned Member for Harborough has endorsed. The point that the Lord Chancellor made, although it was lost on the hon. and learned Gentleman, was that judges receive their salary from the state, as will those in the salaried criminal defence service. There is no question of judges' independence or integrity being compromised in their work, a point that was correctly raised by my right hon. Friend the Member for Llanelli (Mr. Davies), who stated that state-funded services had a fundamental role in our the legal system. We cannot have those services without state funding. They exist and are there to be used.
§ Mr. Burnett
I hope that the Minister will deal with the argument that was advanced by the right hon. Member for Llanelli (Mr. Davies) about the huge panoply of the state apparatus: it consists of not only the judiciary and prosecution, but now the defence. Will he deal with that argument?
§ Mr. Vaz
I hope that I will deal with it briefly, but, as the hon. Gentleman has said, we have discussed the matter on several occasions on Second Reading, in Committee, in the other place and again today. The position has not changed. The state is involved in the provision of legal services. The hon. Gentleman made a very half-hearted 1224 defence of the case that was made in the other place. Perhaps he does not particularly believe in the case that he put forward today, but was going through the motions because he had been entrapped into doing so by his Liberal Democrat colleagues in the other place.
There is no question that the independence of the prosecutor and those who conduct the defence will be compromised. The view that they will both sit in the same room and collude with each other about the outcome of cases is absolute nonsense. For a start, they are responsible to different Departments of State; the Legal Services Commission is indirectly responsible to the Department because, as the hon. Gentleman knows, it is an independent body—it is independent of the Lord Chancellor's Department. The Attorney-General is accountable in Parliament for what the Crown Prosecution Service does.
There is no question of collusion. We would like salaried defenders to be in exactly the same position as prosecutors—the hon. Member for Beaconsfield (Mr. Grieve) described them as fearless champions ensuring that prosecutions are conducted appropriately. That is exactly what we want in relation to salaried defenders.
The hon. and learned Member for Harborough mentioned international research. Was he listening to my speech? Are we taking part in the same debate? Does he understand what we are saying? International research shows that mixed systems can be the best and most cost-effective way in which to provide criminal defence services. I listed in my speech the various research studies in America and Australia, and pointed out that the way forward was to look at a mixed system, which will provide not only better value for money, but better legal services.
As I have said, we intend to consult widely on our proposals, and we intend to have a pilot scheme. I raised the example of what is happening in Scotland. That shows that people wish to use the system that is being developed there, but it is right and proper that we should have a system that best meets the needs of this country's legal system. That is why the pilots are being initiated.
My right hon. Friend the Member for Llanelli has nothing to fear from the proposals because, as he said, the state pays for defence work at the moment. It pays private sector lawyers for each case in which they act. In future, most defence work will be provided by private sector lawyers who are paid under contract. Therefore, there is no question of the system changing fundamentally. We hope to provide choice for people, enabling them to get the best possible advice, assistance and representation that they can. That is all that the system aims to do.
The hon. Member for Torridge and West Devon (Mr. Burnett) asked several questions about timing, information and the like. As I and the Lord Chancellor have said, regulations will cover exactly those points. Before we have those regulations, we will consult and ensure that the system actually works. Services that need to be provided will be provided. Of course, it depends on when the person enters the system. When that person enters the system, he or she will be provided with the full list of firms and any salaried defenders who may be available to do the work.
As the House knows, I worked in a law centre. People came there to ask for assistance on such work—state-funded work—because they had confidence in the 1225 lawyers who were doing the work. The lawyers who will work in the criminal defence service will be of the highest quality. They will be specialists.
The hon. and learned Member for Harborough has, in a veiled way, advertised his work as a libel barrister—I know whom to go to if I am ever defamed: it will not be to him. Of course we want the best possible advocates; that is what we want for the system. It is not true that, because it is a state-funded system with salaried defenders, defenders will be of an inferior class or type. We want the best, in the same way as the Director of Public Prosecutions in the Crown Prosecution Service chooses the best possible people to prosecute.
Those are the arguments; those are the facts. They have not changed since the previous time we discussed the matter in the House. It is clear that the House has expressed its view, and that the other place has made its decisions on the basis of the vested interests involved. Opposition Members should not try to cover up who was behind the moves in the other place. It was a blatant case of those with vested interests attempting to overturn the views of the House. We will not permit that.
I know that the hon. Member for Beaconsfield is the son of a recorder and practising barrister, but he wanders in in the middle of the debate and starts to intervene—[Interruption.] Yes, he did. These are serious issues. He should have been here at the start of the debate if he felt so strongly about them.
What we propose is the best system. It is a good system and it will work.
§ Question put, That this House does not insist on Commons amendments Nos. 27 to 30:—
§ The House divided: Ayes 294, Noes 166.1228
|Division No. 266]||[5.40 pm|
|Adams, Mrs Irene (Paisley N)||Byers, Rt Hon Stephen|
|Ainger, Nick||Caborn, Rt Hon Richard|
|Alexander, Douglas||Campbell, Alan (Tynemouth)|
|Anderson, Janet (Rossendale)||Campbell, Mrs Anne (C'bridge)|
|Armstrong, Rt Hon Ms Hilary||Campbell, Ronnie (Blyth V)|
|Ashton, Joe||Campbell-Savours, Dale|
|Atkins, Charlotte||Cann, Jamie|
|Barron, Kevin||Caplin, Ivor|
|Bayley, Hugh||Casale, Roger|
|Beard, Nigel||Caton, Martin|
|Begg, Miss Anne||Chapman, Ben (Wirral S)|
|Benn, Hilary (Leeds C)||Chaytor, David|
|Benn, Rt Hon Tony (Chesterfield)||Chisholm, Malcolm|
|Bennett, Andrew F||Church, Ms Judith|
|Benton, Joe||Clapham, Michael|
|Berry, Roger||Clark, Rt Hon Dr David (S Shields)|
|Best, Harold||Clarke, Charles (Norwich S)|
|Betts, Clive||Clarke, Rt Hon Tom (Coatbridge)|
|Blackman, Liz||Clarke, Tony (Northampton S)|
|Blunkett, Rt Hon David||Clelland, David|
|Borrow, David||Clwyd, Ann|
|Bradley, Peter (The Wrekin)||Coffey, Ms Ann|
|Bradshaw, Ben||Cohen, Harry|
|Brinton, Mrs Helen||Colman, Tony|
|Brown, Rt Hon Nick (Newcastle E)||Connarty, Michael|
|Browne, Desmond||Cook, Frank (Stockton N)|
|Buck, Ms Karen||Corbett, Robin|
|Burden, Richard||Cousins, Jim|
|Burgon, Colin||Cox, Tom|
|Butler, Mrs Christine||Cranston, Ross|
|Cryer, Mrs Ann (Keighley)||Johnson, Miss Melanie (Welwyn Hatfield)|
|Cryer, John (Hornchurch)|
|Cunliffe, Lawrence||Jones, Rt Hon Barry (Alyn)|
|Cunningham, Jim (Cov'try S)||Jones, Mrs Fiona (Newark)|
|Curtis-Thomas, Mrs Claire||Jones, Helen (Warrington N)|
|Dalyell, Tam||Jones, Ms Jenny (Wolverh'ton SW)|
|Davey, Valerie (Bristol W)||Jones, Jon Owen (Cardiff C)|
|Davidson, Ian||Jones, Dr Lynne (Selly Oak)|
|Davies, Geraint (Croydon C)||Jones, Martyn (Clwyd S)|
|Davis, Terry (B'ham Hodge H)||Jowell, Rt Hon Ms Tessa|
|Dawson, Hilton||Kaufman, Rt Hon Gerald|
|Dean, Mrs Janet||Keeble, Ms Sally|
|Denham, John||Keen, Alan (Feltham & Heston)|
|Dewar, Rt Hon Donald||Kelly, Ms Ruth|
|Dismore, Andrew||Kemp, Fraser|
|Donohoe, Brian H||Kennedy, Jane (Wavertree)|
|Doran, Frank||Khabra, Piara S|
|Drew, David||Kidney, David|
|Drown, Ms Julia||Kilfoyle, Peter|
|Dunwoody, Mrs Gwyneth||King, Ms Oona (Bethnal Green)|
|Eagle, Maria (L'pool Garston)||Ladyman, Dr Stephen|
|Edwards, Huw||Lawrence, Ms Jackie|
|Ellman, Mrs Louise||Laxton, Bob|
|Ennis, Jeff||Lepper, David|
|Etherington, Bill||Leslie, Christopher|
|Field, Rt Hon Frank||Levitt, Tom|
|Fisher, Mark||Lewis, Terry (Worsley)|
|Fitzpatrick, Jim||Linton, Martin|
|Fitzsimons, Lorna||Lock, David|
|Flint, Caroline||McAllion, John|
|Flynn, Paul||McAvoy, Thomas|
|Follett, Barbara||McCafferty, Ms Chris|
|Foster, Michael Jabez (Hastings)||McDonagh, Siobhain|
|Foster, Michael J (Worcester)||Macdonald, Calum|
|Fyfe, Maria||McDonnell, John|
|Galloway, George||McFall, John|
|Gapes, Mike||McGrady, Eddie|
|Gardiner, Barry||McIsaac, Shona|
|George, Bruce (Walsall S)||McKenna, Mrs Rosemary|
|Gerrard, Neil||McNamara, Kevin|
|Gibson, Dr Ian||McNulty, Tony|
|Gilroy, Mrs Linda||MacShane, Denis|
|Godsiff, Roger||McWalter, Tony|
|Golding, Mrs Llin||McWilliam, John|
|Gordon, Mrs Eileen||Mahon, Mrs Alice|
|Griffiths, Jane (Reading E)||Mallaber, Judy|
|Griffiths, Nigel (Edinburgh S)||Mandelson, Rt Hon Peter|
|Griffiths, Win (Bridgend)||Marsden, Gordon (Blackpool S)|
|Grocott, Bruce||Marshall, David (Shettleston)|
|Grogan, John||Marshall, Jim (Leicester S)|
|Gunnell, John||Martlew, Eric|
|Hain, Peter||Meale, Alan|
|Hamilton, Fabian (Leeds NE)||Merron, Gillian|
|Harman, Rt Hon Ms Harriet||Michie, Bill (Shef'ld Heeley)|
|Heal, Mrs Sylvia||Milburn, Rt Hon Alan|
|Healey, John||Mitchell, Austin|
|Henderson, Doug (Newcastle N)||Moffatt, Laura|
|Heppell, John||Moonie, Dr Lewis|
|Hill, Keith||Moran, Ms Margaret|
|Hinchliffe, David||Morgan, Ms Julie (Cardiff N)|
|Hodge, Ms Margaret||Morley, Elliot|
|Hoey, Kate||Morris, Ms Estelle (B'ham Yardley)|
|Hood, Jimmy||Mudie, George|
|Hopkins, Kelvin||Mullin, Chris|
|Howarth, George (Knowsley N)||Murphy, Denis (Wansbeck)|
|Howells, Dr Kim||Murphy, Jim (Eastwood)|
|Hoyle, Lindsay||Murphy, Rt Hon Paul (Torfaen)|
|Hughes, Ms Beverley (Stretford)||Naysmith, Dr Doug|
|Hughes, Kevin (Doncaster N)||O'Brien, Bill (Normanton)|
|Humble, Mrs Joan||O'Hara, Eddie|
|Hurst, Alan||Olner, Bill|
|Iddon, Dr Brian||Organ, Mrs Diana|
|Jackson, Ms Glenda (Hampstead)||Osborne, Ms Sandra|
|Jackson, Helen (Hillsborough)||Palmer, Dr Nick|
|Jenkins, Brian||Pearson, Ian|
|Pendry, Tom||Steinberg, Gerry|
|Pickthall, Colin||Stevenson, George|
|Pike, Peter L||Stewart, David (Inverness E)|
|Plaskitt, James||Stinchcombe, Paul|
|Pope, Greg||Stoate, Dr Howard|
|Pound, Stephen||Stott, Roger|
|Powell, Sir Raymond||Straw, Rt Hon Jack|
|Prentice, Ms Bridget (Lewisham E)||Stringer, Graham|
|Prentice, Gordon (Pendle)||Stuart, Ms Gisela|
|Primarolo, Dawn||Taylor, Rt Hon Mrs Ann (Dewsbury)|
|Purchase, Ken||Taylor, Ms Dari (Stockton S)|
|Quin, Rt Hon Ms Joyce||Taylor, David (NW Leics)|
|Radice, Rt Hon Giles||Temple-Morris, Peter|
|Rammell, Bill||Thomas, Gareth (Clwyd W)|
|Rapson, Syd||Thomas, Gareth R (Harrow W)|
|Raynsford, Nick||Timms, Stephen|
|Reid, Rt Hon Dr John (Hamilton N)||Tipping, Paddy|
|Robinson, Geoffrey (Cov'try NW)||Touhig, Don|
|Roche, Mrs Barbara||Trickett, Jon|
|Rooker Jeff||Turner, Dennis (Wolverh'ton SE)|
|Rooney, Terry||Turner, Dr Desmond (Kemptown)|
|Roy Frank||Turner, Dr George (NW Norfolk)|
|Ruane, Chris||Twigg, Stephen (Enfield)|
|Ruddock, Joan||Vaz, Keith|
|Ryan, Ms Joan||Vis, Dr Rudi|
|Salter, Martin||Walley, Ms Joan|
|Sarwar, Mohammad||Ward, Ms Claire|
|Savidge, Malcolm||Wareing, Robert N|
|Sawford, Phil||Watts, David|
|Sedgemore, Brian||White, Brian|
|Sheerman, Barry||Whitehead, Dr Alan|
|Sheldon, Rt Hon Robert||Williams, Rt Hon Alan (Swansea W)|
|Simpson, Alan (Nottingham S)||Williams, Alan W (E Carmarthen)|
|Singh, Marsha||Wills, Michael|
|Skinner, Dennis||Winnick, David|
|Smith, Miss Geraldine (Morecambe & Lunesdale)||Worthington, Tony|
|Smith, Jacqui (Redditch)||Wright, Anthony D (Gt Yarmouth)|
|Smith, John (Glamorgan)||Wright, Dr Tony (Cannock)|
|Smith, Llew (Blaenau Gwent)||Wyatt, Derek|
|Soley, Clive||Tellers for the Ayes:|
|Spellar, John||Mr. Robert Ainsworth and|
|Squire, Ms Rachel||Mr. Jim Dowd|
|Ainsworth, Peter (E Surrey)||Chidgey, David|
|Allan, Richard||Chope, Christopher|
|Amess, David||Clappison, James|
|Ancram, Rt Hon Michael||Clarke, Rt Hon Kenneth (Rushcliffe)|
|Arbuthnot, Rt Hon James|
|Baker, Norman||Collins, Tim|
|Beggs, Roy||Colvin, Michael|
|Beith, Rt Hon A J||Cormack, Sir Patrick|
|Bell, Martin (Tatton)||Cotter, Brian|
|Bercow, John||Cran, James|
|Beresford, Sir Paul||Curry, Rt Hon David|
|Blunt, Crispin||Davey, Edward (Kingston)|
|Body, Sir Richard||Davies, Quentin (Grantham)|
|Boswell, Tim||Davis, Rt Hon David (Haltemprice)|
|Bottomley, Peter (Worthing W)||Day, Stephen|
|Bottomley, Rt Hon Mrs Virginia||Donaldson, Jeffrey|
|Brake, Tom||Dorrell, Rt Hon Stephen|
|Brand, Dr Peter||Duncan, Alan|
|Brazier, Julian||Duncan Smith, Iain|
|Brooke, Rt Hon Peter||Emery, Rt Hon Sir Peter|
|Browning, Mrs Angela||Evans, Nigel|
|Burnett, John||Faber, David|
|Burns, Simon||Fabricant, Michael|
|Burstow, Paul||Fallon, Michael|
|Cable, Dr Vincent||Fearn, Ronnie|
|Cash, William||Flight, Howard|
|Chapman, Sir Sydney (Chipping Barnet)||Forsythe, Clifford|
|Forth, Rt Hon Eric|
|Foster, Don (Bath)||Maude, Rt Hon Francis|
|Fox, Dr Liam||May, Mrs Theresa|
|Fraser, Christopher||Michie, Mrs Ray (Argyll & Bute)|
|Gale, Roger||Moore, Michael|
|Garnier, Edward||Moss, Malcolm|
|George, Andrew (St Ives)||Nicholls, Patrick|
|Gibb, Nick||Norman, Archie|
|Gill, Christopher||Oaten, Mark|
|Gillan, Mrs Cheryl||Ottaway, Richard|
|Gorman, Mrs Teresa||Page, Richard|
|Gorrie, Donald||Paice, James|
|Gray, James||Prior, David|
|Green, Damian||Randall, John|
|Greenway, John||Redwood, Rt Hon John|
|Grieve, Dominic||Rendel, David|
|Gummer, Rt Hon John||Robathan, Andrew|
|Hague, Rt Hon William||Roe, Mrs Marion (Broxbourne)|
|Hamilton, Rt Hon Sir Archie||Russell, Bob (Colchester)|
|Hammond, Philip||St Aubyn, Nick|
|Harris, Dr Evan||Sanders, Adrian|
|Hawkins, Nick||Sayeed, Jonathan|
|Heathcoat-Amory, Rt Hon David||Shepherd, Richard|
|Hogg, Rt Hon Douglas||Smith, Sir Robert (W Ab'd'ns)|
|Howard, Rt Hon Michael||Smyth, Rev Martin (Belfast S)|
|Howarth, Gerald (Aldershot)||Spelman, Mrs Caroline|
|Hughes, Simon (Southwark N)||Spring, Richard|
|Hunter, Andrew||Steen, Anthony|
|Jackson, Robert (Wantage)||Streeter, Gary|
|Jenkin, Bernard||Swayne, Desmond|
|Johnson Smith, Rt Hon Sir Geoffrey||Syms, Robert|
|Tapsell, Sir Peter|
|Jones, Nigel (Cheltenham)||Taylor, Ian (Esher & Walton)|
|Keetch Paul||Taylor, John M (Solihull)|
|Kennedy, Charles (Ross Skye)||Taylor, Matthew (Truro)|
|Key, Robert||Tonge, Dr Jenny|
|King, Rt Hon Tom (Bridgwater)||Townend, John|
|Kirkbride, Miss Julie||Tyler, Paul|
|Kirkwood, Archy||Tyrie, Andrew|
|Lait, Mrs Jacqui||Viggers, Peter|
|Lansley, Andrew||Walter, Robert|
|Leigh, Edward||Wardle, Charles|
|Letwin, Oliver||Waterson, Nigel|
|Lewis, Dr Julian (New Forest E)||Webb, Steve|
|Lidington, David||Wells, Bowen|
|Lilley, Rt Hon Peter||Whitney, Sir Raymond|
|Livsey, Richard||Whittingdale, John|
|Lloyd, Rt Hon Sir Peter (Fareham)||Widdecombe, Rt Hon Miss Ann|
|Llwyd, Elfyn||Wilkinson, John|
|Loughton, Tim||Willetts, David|
|Luff, Peter||Willis, Phil|
|Lyell, Rt Hon Sir Nicholas||Winterton, Mrs Ann (Congleton)|
|McIntosh, Miss Anne||Winterton, Nicholas (Macclesfield)|
|MacKay, Rt Hon Andrew||Yeo, Tim|
|Maclean, Rt Hon David||Young, Rt Hon Sir George|
|Malins, Humfrey||Tellers for the Noes:|
|Maples, John||Mr. Keith Simpson and|
|Mates, Michael||Mr. Geoffrey Clifton-Brown.|
§ Question accordingly agreed to.
§ Government amendments (a) to (e) agreed to.
§ Mr. Vaz
I beg to move, That this House does not insist on Commons amendment No. 31, to which the Lords have disagreed.
Lords Reason:Because an individual who has been provided with advice or assistance funded by the Commission under section 14 should not be taken to have selected as his representative pursuant to that right the person who provided the advice or assistance.
§ Mr. Vaz
The amendments relate to clause 15, which establishes the duty of the commission to fund 1229 representation, sets out the means by which it may do so, and provides powers to limit the extent to which the defendant may choose his or her representative.
It is highly desirable that defendants should be able to choose their representative, not least to promote their confidence in the criminal justice system. Clause 15(7) enshrines that principle. However, a completely unrestricted choice would undermine the commission's ability to achieve value for money, so subsection (8) contains powers to limit that right of choice by regulations.
One of the fundamental weaknesses of the present criminal legal aid system is its fragmentation. That can lead to help being given under several different parts of the scheme in a single case—green form advice, advice and assistance at the police station, assistance from the duty solicitor at the magistrates court, and a full legal aid order for representation in court. That produces duplication, delay and unnecessary cost.
Amendment No. 31, now further clarified by the amendments proposed today, is central to our plans to eliminate these deficiencies in future by ensuring, wherever possible, continuity of representation throughout the case. It is a power to make regulations prescribing circumstances in which individuals who receive advice and assistance are deemed to have selected their adviser to represent them in the subsequent proceedings.
Once an individual has chosen an adviser, typically when being questioned by the police, the taxpayer should only have to pay for another lawyer to take over the case, necessarily repeating some work that has already been done, if there is a good reason for a change. An example would be a conflict of interest between clients.
Let me explain how we envisage the system working in practice. A person being questioned by the police will be able to select his or her adviser from any firm holding a contract with the Legal Services Commission, or he or she might select a salaried defender. Suspects would be shown a list of all firms based in the area, and informed of the implication of their choice. If the chosen adviser were not available, the individual would use the duty solicitor for the time being. But the duty solicitor will not be considered to have been selected, as a preference had been expressed for someone else. If an individual declines to express a preference, he or she will be advised by the duty solicitor and deemed to have selected the duty solicitor as their representative.
The power provided by amendment No. 31 applied to any provider of advice and assistance; it did not distinguish between those who had been chosen by the suspect and those providing advice only because the chosen adviser was not available. The intention was for the regulations to make it clear that a person advised by the duty solicitor would not be deemed to have chosen the duty solicitor as a representative if a different choice had been expressed.
Alternative amendment (a) in my name is a more limited power which applies to only chosen advisers. Amendment (b) provides power to define what constitutes a choice. That is necessary to deal with the situation of an individual who declines to express any preference. The regulations would provide that someone who remained silent, having been informed of their right to make a choice and the implications of not doing so, would be 1230 deemed to have chosen the duty solicitor who actually advised them. That is necessary to prevent people from playing the system by refusing to express a preference, accepting the advice of the duty solicitor, and then seeking to exercise their right to choose a different representative when the case reached court, probably causing the case to be adjourned.
We intend to consult on the details of all the regulations under clause 15, including regulations about continuity between advice and representation under these amendments, and regulations under clause 15(8)(e) about the circumstances when it is justified to change the originally chosen representative.
The Government have explained repeatedly during the Bill's passage that it will provide powers to ensure that the public receive quality-assured services. People requiring criminal defence services will benefit from the performance standards that will be incorporated in all contracts, and applied to salaried defenders. Those will include targets for the proportion of requests to attend at a police station, once a suspect has made a choice, which are met by the solicitors' firm or salaried defenders' office. All firms with criminal defence service contracts, and any salaried defenders, will take part in the duty solicitor rota. There is, therefore, no reason to suppose that advice and assistance from the duty solicitor in any sense constitutes a second-class service.
The noble Lord Thomas of Gresford tabled the motion in another place to disagree with Commons amendment No. 31. That followed immediately on his successful motions about salaried defenders. No doubt inadvertently. he also moved this motion, although he had not spoken to it, and it was erroneously allowed to pass before my noble Friend the Lord Chancellor could speak in favour of amendment No. 31. I do not know whether Lord Thomas would have been content with the Lord Chancellor's explanation, because he did not have an opportunity to give it, but he is probably as surprised as anyone that the issue remains to be settled.
§ 6 pm
§ Mr. Garnier
My brevity should not be taken to reflect our opposition to the way in which the Government intend to amend the Bill. I have listened with care to the Minister. What he said broadly reflects what the Lord Chancellor said about Lord Gresford's amendment on 14 July:It will allow the defendant's choice to be limited to any lawyer with a current contract with the Legal Services Commission (or, had that provision prevailed, a salaried defender). Our intention is to ensure that suspects and defendants generally have a choice between several contracted firms and, were salaried defenders to be permitted, with them too."—[Official Report, House of Lords, 14 July 1999; Vol. 604, c. 424.]I am reminded of Mr. Henry Ford, the car manufacturer, who said that people might have any colour, so long as it was black. In Committee, on 4 May, I described the Minister's predecessor's arguments in favour of the Government's proposal as follows:When I say that you have a choice, you have the choice that I decree you should have. It's not a free choice between any number of options—it's take it or leave it."—[Official Report, Standing Committee E, 4 May 1999; c. 227.]The Government have been responsible for a huge number of remarkable utterances.
§ Mr. Humfrey Malins (Woking)
Will my hon. and learned Friend accept from someone who has practised 1231 criminal law for many years that countless practitioners up and down the country fear that we are seeing a complete reduction in choice for the accused person? That person simply will not have the freedom that he or she has always had to choose a lawyer. Because of financial constraints, choice will be severely limited. Does that not go against the interests of defendants and the criminal justice system?
§ Mr. Garnier
My hon. Friend speaks a truth evident to all—except the Government—who are prepared to apply their minds to it. I regret that a Government containing distinguished lawyers including the Lord Chancellor, Lord Falconer of Thoroton and even the Minister, who is muttering across the Table, should be so befuddled by their own arguments, but parliamentary arithmetic means that my argument may win the day and lose the vote. That is life in the House these days.
I wish to draw to the House's attention the gross unfairness and lack of justice of the Government's proposals. They will leave an absence of choice for the defendant. Imagine a defendant who enters a police station at 2 am, perhaps after being beaten up, perhaps drunk. That man will be required to submit himself to the choice provided by the Lord Chancellor, and to no other choice. The Government's proposal is appalling, and I urge my right hon. and hon. Friends to throw it out.
§ Mr. Burnett
For the record, in spite of the Minister's comments during the previous debate, my opposition to the state or salaried defender system is genuine. For the reasons I have often given, it is also absolute.
Why should an individual's choice be irrevocable? The Minister has made much of choice. Let me take him to a metaphorical police cell in a large city or a rural town. It is 3 am. An arrested person is brought into the station. His or her rights and options are read out. The defendant may be intoxicated—drunk, as they say, or high on drugs. How can he or she make a choice, let alone an irrevocable one? The defendant may find his or her lawyer's conduct unsatisfactory, or there may be a personality conflict. The defendant may wish to make a change, and should have an opportunity to make a reasonable choice. For that reason, I believe that the Bill should remain as the Lords left it.
§ Mr. Grieve
Nothing makes me more anxious about the matters dealt with by the previous amendments than the fact that, having established the principle of a criminal defence service, the Government have placed this proposal before us. As the hon. Member for Torridge and West Devon (Mr. Burnett) said, people brought into a police station should be provided with rapid advice on their rights in respect of police questioning. That is what the duty solicitor scheme was all about, but it will be distorted if irrevocable choices must be made so that people are prevented from going to the legal representative of their choice if they are later charged. The two areas are quite distinct, and the blurring is unnecessary.
The proposal seems to be driven by a desire to save quite a small amount of money. It offends every tenet of civil rights and civil liberties. It is incomprehensible, and I hope that the Government will think again. Those who 1232 pressed this matter to the vote in the other place knew exactly what they were doing. It is one of the most pernicious and noxious parts of the Bill.
§ Mr. Vaz
The arguments advanced are not new. We have heard them before, including the usual quotation of Henry Ford from the hon. and learned Member for Harborough (Mr. Garnier), which is a strange one from a man who drives a Range Rover.
I am sorry that I cannot provide an assurance about drunks on the face of the Bill, but I can assure the House that no one will have to make a choice when he or she is drunk. The choice will be made when people are fit to be questioned. They will choose from a list of franchised and contracted firms. They will choose on the basis of the excellent duty solicitor scheme.
I was surprised by what was said by the hon. Member for Torridge and West Devon (Mr. Burnett)—a distinguished stipendiary magistrate. He knows that the duty solicitor scheme works and that those who serve on it are people of quality. There is no question of people failing to receive legal advice and assistance of good quality.
§ Question put, That this House does not insist on Commons amendment No. 31:—
§ The House divided: Ayes 288, Noes 173.1235
|Division No. 267]||[6.9 pm|
|Adams, Mrs Irene (Paisley N)||Caplin, Ivor|
|Ainger, Nick||Casale, Roger|
|Ainsworth, Robert (Cov'try NE)||Caton, Martin|
|Alexander, Douglas||Chapman, Ben (Wirral S)|
|Allen, Graham||Chaytor, David|
|Anderson, Janet (Rossendale)||Chisholm, Malcolm|
|Armstrong, Rt Hon Ms Hilary||Church, Ms Judith|
|Ashton, Joe||Clapham, Michael|
|Atkins, Charlotte||Clark, Rt Hon Dr David (S Shields)|
|Banks, Tony||Clark, Dr Lynda (Edinburgh Pentlands)|
|Bayley, Hugh||Clarke, Charles (Norwich S)|
|Beard, Nigel||Clarke, Rt Hon Tom (Coatbridge)|
|Beckett, Rt Hon Mrs Margaret||Clarke, Tony (Northampton S)|
|Begg, Miss Anne||Clwyd, Ann|
|Benn, Hilary (Leeds C)||Coffey, Ms Ann|
|Benn, Rt Hon Tony (Chesterfield)||Cohen, Harry|
|Bennett, Andrew F||Colman, Tony|
|Benton, Joe||Connarty, Michael|
|Berry, Roger||Cook, Frank (Stockton N)|
|Best, Harold||Corbett, Robin|
|Betts, Clive||Corbyn, Jeremy|
|Blackman, Liz||Cousins, Jim|
|Blunkett, Rt Hon David||Cox, Tom|
|Borrow, David||Cranston, Ross|
|Bradley, Keith (Withington)||Cryer, John (Hornchurch)|
|Bradley, Peter (The Wrekin)||Cummings, John|
|Bradshaw, Ben||Cunliffe, Lawrence|
|Brinton, Mrs Helen||Cunningham, Jim (Cov'try S)|
|Brown, Rt Hon Nick (Newcastle E)||Curtis-Thomas, Mrs Claire|
|Browne, Desmond||Dalyell, Tam|
|Buck, Ms Karen||Darvill, Keith|
|Burgon, Colin||Davey, Valerie (Bristol W)|
|Butler, Mrs Christine||Davies, Rt Hon Denzil (Llanelli)|
|Byers, Rt Hon Stephen||Davies, Geraint (Croydon C)|
|Caborn, Rt Hon Richard||Davis, Terry (B'ham Hodge H)|
|Campbell, Alan (Tynemouth)||Dawson, Hilton|
|Campbell, Mrs Anne (C'bridge)||Dean, Mrs Janet|
|Campbell, Ronnie (Blyth V)||Denham, John|
|Campbell-Savours, Dale||Dewar, Rt Hon Donald|
|Cann, Jamie||Dismore, Andrew|
|Donohoe, Brian H||Lawrence, Ms Jackie|
|Doran, Frank||Laxton, Bob|
|Dowd, Jim||Lepper, David|
|Drown, Ms Julia||Leslie, Christopher|
|Dunwoody, Mrs Gwyneth||Levitt, Tom|
|Eagle, Maria (L 'pool Garston)||Lewis, Terry (Worsley)|
|Edwards, Huw||Liddell, Rt Hon Mrs Helen|
|Ellman, Mrs Louise||Linton, Martin|
|Ennis, Jeff||Lock, David|
|Etherington, Bill||McAllion, John|
|Field, Rt Hon Frank||McAvoy, Thomas|
|Fisher, Mark||McCafferty, Ms Chris|
|Fitzpatrick, Jim||Macdonald, Calum|
|Fitzsimons, Lorna||McDonnell, John|
|Flynn, Paul||McFall, John|
|Follett, Barbara||McGuire, Mrs Anne|
|Foster, Rt Hon Derek||McIsaac, Shona|
|Foster, Michael Jabez (Hastings)||McKenna, Mrs Rosemary|
|Foster, Michael J (Worcester)||McNamara, Kevin|
|Fyfe, Maria||McNulty, Tony|
|Galloway, George||MacShane, Denis|
|Gapes, Mike||McWalter, Tony|
|Gardiner, Barry||McWilliam, John|
|George, Bruce (Walsall S)||Mahon, Mrs Alice|
|Gerrard, Neil||Mallaber, Judy|
|Gibson, Dr Ian||Mandelson, Rt Hon Peter|
|Godsiff, Roger||Marsden, Gordon (Blackpool S)|
|Gordon, Mrs Eileen||Marshall, David (Shettleston)|
|Griffiths, Jane (Reading E)||Marshall, Jim (Leicester S)|
|Griffiths, Nigel (Edinburgh S)||Martlew, Eric|
|Grocott, Bruce||Meale, Alan|
|Grogan, John||Merron, Gillian|
|Gunnell, John||Michie, Bill (Shef'ld Heeley)|
|Hain, Peter||Milburn, Rt Hon Alan|
|Hamilton, Fabian (Leeds NE)||Moffatt, Laura|
|Heal, Mrs Sylvia||Moonie, Dr Lewis|
|Healey, John||Morgan, Ms Julie (Cardiff N)|
|Henderson, Doug (Newcastle N)||Morley, Elliot|
|Heppell, John||Morris, Ms Estelle (B'ham Yardley)|
|Hewitt, Ms Patricia||Mudie, George|
|Hill, Keith||Mullin, Chris|
|Hinchliffe, David||Murphy, Denis (Wansbeck)|
|Hoey, Kate||Murphy, Jim (Eastwood)|
|Hood, Jimmy||Murphy, Rt Hon Paul (Torfaen)|
|Hopkins, Kelvin||Naysmith, Dr Doug|
|Howarth, George (Knowsley N)||O'Brien, Bill (Normanton)|
|Howells, Dr Kim||O'Hara, Eddie|
|Hoyle, Lindsay||Olner, Bill|
|Hughes, Ms Beverley (Stretford)||Osborne, Ms Sandra|
|Humble, Mrs Joan||Pearson, Ian|
|Hurst, Alan||Pendry, Tom|
|Iddon, Dr Brian||Pickthall, Colin|
|Jackson, Ms Glenda (Hampstead)||Pike, Peter L|
|Jackson, Helen (Hillsborough)||Plaskitt, James|
|Jenkins, Brian||Pope, Greg|
|Johnson, Miss Melanie (Welwyn Hatfield)||Pound, Stephen|
|Powell, Sir Raymond|
|Jones, Rt Hon Barry (Alyn)||Prentice, Ms Bridget (Lewisham E)|
|Jones, Mrs Fiona (Newark)||Prentice, Gordon (Pendle)|
|Jones, Helen (Warrington N)||Primarolo, Dawn|
|Jones, Ms Jenny (Wolverh'ton SW)||Prosser, Gwyn|
|Jones, Jon Owen (Cardiff C)||Quin, Rt Hon Ms Joyce|
|Jones, Dr Lynne (Selly Oak)||Radice, Rt Hon Giles|
|Jones, Martyn (Clwyd S)||Rammell, Bill|
|Kaufman, Rt Hon Gerald||Rapson, Syd|
|Keeble, Ms Sally||Raynsford, Nick|
|Keen, Alan (Feltham & Heston)||Reid, Rt Hon Dr John (Hamilton N)|
|Kelly, Ms Ruth||Robinson, Geoffrey (Cov'try NW)|
|Kemp, Fraser||Roche, Mrs Barbara|
|Kennedy, Jane (Wavertree)||Rooney, Terry|
|Khabra, Piara S||Roy, Frank|
|Kidney, David||Ruane, Chris|
|Kilfoyle, Peter||Ruddock, Joan|
|King, Ms Oona (Bethnal Green)||Ryan, Ms Joan|
|Ladyman, Dr Stephen||Salter, Martin|
|Sarwar, Mohammad||Timms, Stephen|
|Savidge, Malcolm||Tipping, Paddy|
|Sawford, Phil||Touhig, Don|
|Sedgemore, Brian||Trickett, Jon|
|Sheerman, Barry||Turner, Dennis (Wolverh'ton SE)|
|Sheldon, Rt Hon Robert||Turner, Dr Desmond (Kemptown)|
|Simpson, Alan (Nottingham S)||Turner, Dr George (NW Norfolk)|
|Singh, Marsha||Twigg, Stephen (Enfield)|
|Skinner, Dennis||Vaz, Keith|
|Smith, Miss Geraldine (Morecambe & Lunesdale)||Vis, Dr Rudi|
|Walley, Ms Joan|
|Smith, John (Glamorgan)||Ward, Ms Claire|
|Smith, Llew (Blaenau Gwent)||Wareing, Robert N|
|Snape, Peter||Watts, David|
|Soley, Clive||White, Brian|
|Spellar, John||Whitehead, Dr Alan|
|Squire, Ms Rachel||Williams, Rt Hon Alan (Swansea W)|
|Stevenson, George||Williams, Alan W (E Carmarthen)|
|Stinchcombe, Paul||Wills, Michael|
|Stoate, Dr Howard||Wilson, Brian|
|Stott, Roger||Winnick, David|
|Straw, Rt Hon Jack||Wise, Audrey|
|Stringer, Graham||Worthington, Tony|
|Stuart, Ms Gisela||Wray, James|
|Taylor, Rt Hon Mrs Ann (Dewsbury)||Wright, Anthony D (Gt Yarmouth)|
|Wright, Dr Tony (Cannock)|
|Taylor, Ms Dari (Stockton S)||Wyatt, Derek|
|Taylor, David (NW Leics)|
|Temple-Morris, Peter||Tellers for the Ayes:|
|Thomas, Gareth (Clwyd W)||Mr. David Clelland and|
|Thomas, Gareth R (Harrow W)||Mr. Kevin Hughes.|
|Ainsworth, Peter (E Surrey)||Cran, James|
|Allan, Richard||Curry, Rt Hon David|
|Amess, David||Davey, Edward (Kingston)|
|Ancram, Rt Hon Michael||Davies, Quentin (Grantham)|
|Arbuthnot, Rt Hon James||Davis, Rt Hon David (Haltemprice)|
|Ashdown, Rt Hon Paddy||Day, Stephen|
|Atkinson, David (Bour'mth E)||Donaldson, Jeffrey|
|Baker, Norman||Dorrell, Rt Hon Stephen|
|Baldry, Tony||Duncan, Alan|
|Beggs, Roy||Duncan Smith, Iain|
|Beith, Rt Hon A J||Emery, Rt Hon Sir Peter|
|Bell, Martin (Tatton)||Evans, Nigel|
|Bercow, John||Faber, David|
|Beresford, Sir Paul||Fabricant, Michael|
|Blunt, Crispin||Fallon, Michael|
|Body, Sir Richard||Fearn, Ronnie|
|Boswell, Tim||Flight, Howard|
|Bottomley, Peter (Worthing W)||Forsythe, Clifford|
|Bottomley, Rt Hon Mrs Virginia||Forth, Rt Hon Eric|
|Brake, Tom||Foster, Don (Bath)|
|Brand, Dr Peter||Fox, Dr Liam|
|Brazier, Julian||Fraser, Christopher|
|Brooke, Rt Hon Peter||Gale, Roger|
|Browning, Mrs Angela||Garnier, Edward|
|Bruce, Ian (S Dorset)||George, Andrew (St Ives)|
|Burnett, John||Gibb, Nick|
|Burns, Simon||Gill, Christopher|
|Burstow, Paul||Gillan, Mrs Cheryl|
|Cable, Dr Vincent||Gorman, Mrs Teresa|
|Cash, William||Gorrie, Donald|
|Chapman, Sir Sydney (Chipping Barnet)||Gray, James|
|Chidgey, David||Greenway, John|
|Chope, Christopher||Grieve, Dominic|
|Clappison, James||Gummer, Rt Hon John|
|Clarke, Rt Hon Kenneth (Rushcliffe)||Hague, Rt Hon William|
|Hamilton, Rt Hon Sir Archie|
|Clifton-Brown, Geoffrey||Hammond, Philip|
|Collins, Tim||Hancock, Mike|
|Colvin, Michael||Harris, Dr Evan|
|Cormack, Sir Patrick||Harvey, Nick|
|Cotter, Brian||Hawkins, Nick|
|Heathcoat-Amory, Rt Hon David||Randall, John|
|Hogg, Rt Hon Douglas||Redwood, Rt Hon John|
|Howarth, Gerald (Aldershot)||Rendel, David|
|Hughes, Simon (Southwark N)||Robathan, Andrew|
|Hunter, Andrew||Roe, Mrs Marion (Broxbourne)|
|Jackson, Robert (Wantage)||Russell, Bob (Colchester)|
|Jenkin, Bernard||St Aubyn, Nick|
|Johnson Smith, Rt Hon Sir Geoffrey||Sayeed, Jonathan|
|Jones, Nigel (Cheltenham)||Smith, Sir Robert (W Ab'd'ns)|
|Keetch, Paul||Smyth, Rev Martin (Belfast S)|
|Kennedy, Charles (Ross Skye)||Soames, Nicholas|
|Key, Robert||Spelman, Mrs Caroline|
|Kirkbride, Miss Julie||Spring, Richard|
|Kirkwood, Archy||Steen, Anthony|
|Lansley, Andrew||Streeter, Gary|
|Leigh, Edward||Swayne, Desmond|
|Letwin, Oliver||Syms, Robert|
|Lewis, Dr Julian (New Forest E)||Tapsell, Sir Peter|
|Lidington, David||Taylor, Ian (Esher & Walton)|
|Lilley, Rt Hon Peter||Taylor, Rt Hon John D (Strangford)|
|Livsey, Richard||Taylor, John M (Solihull)|
|Lloyd, Rt Hon Sir Peter (Fareham)||Taylor, Matthew (Truro)|
|Llwyd, Elfyn||Tonge, Dr Jenny|
|Luff, Peter||Townend, John|
|Lyell, Rt Hon Sir Nicholas||Tredinnick, David|
|MacGregor, Rt Hon John||Tyler, Paul|
|McIntosh, Miss Anne||Tyrie, Andrew|
|MacKay, Rt Hon Andrew||Viggers, Peter|
|Maclean, Rt Hon David||Walter, Robert|
|McLoughlin, Patrick||Wardle, Charles|
|Malins, Humfrey||Waterson, Nigel|
|Maples, John||Webb, Steve|
|Mates, Michael||Wells, Bowen|
|Maude, Rt Hon Francis||Whitney, Sir Raymond|
|May, Mrs Theresa||Whittingdale, John|
|Michie, Mrs Ray (Argyll & Bute)||Widdecombe, Rt Hon Miss Ann|
|Moore, Michael||Wilkinson, John|
|Moss, Malcolm||Willetts, David|
|Nicholls, Patrick||Willis, Phil|
|Norman, Archie||Winterton, Mrs Ann (Congleton)|
|Oaten, Mark||Winterton, Nicholas (Macclesfield)|
|Öpik, Lembit||Yeo, Tim|
|Ottaway, Richard||Young, Rt Hon Sir George|
|Paice, James||Tellers for the Noes:|
|Pickles, Eric||Mrs. Jacqui Lait and|
|Prior, David||Mr. Keith Simpson.|
§ Question accordingly agreed to.
§ Government amendments (a) and (b) agreed to.
§ Lords amendment to Commons amendment No. 56 considered.
Mr. Deputy Speaker
With this, it will be convenient to take Government amendment (a) in lieu thereof.
§ Mr. Vaz
The House will remember the speeches of the hon. Members for Surrey Heath (Mr. Hawkins) and for Torridge and West Devon (Mr. Burnett) and my hon. Friend the Member for Hendon (Mr. Dismore) during the Committee and Report stages of the Bill. The House heard how important bodies including the Law Society and Shelter considered the continuing availability of no win, no fee agreements to be in cases brought under section 82 of the Environmental Protection Act 1990.
I said at the time that I was sympathetic to the arguments, but needed to consider the fine balance between the deserving cases that had been outlined and 1236 the importance of keeping conditional fee agreements out of criminal cases. Since the Report stage, the Government have been considering further the arguments put to us by the House, in another place and by various campaigning organisations. As the House knows, ours is a listening Government. We have concluded that it is right that no win, no fee agreements should remain available, and that is why we have now tabled the amendment.
The Lords amendment, which was moved by Lord Goodhart, would broaden the effect of amendment No. 56 so that it excluded from the scope of the Bill not only non-contentious business agreements, but any form of fee agreement enforceable at common law, typically conditional fee agreements with no uplift, which are often known as Thai Trading agreements. However, it is the specific intention of clause 29 to bring Thai Trading agreements into the scope of the conditional fee legislation, both to secure the greater certainty that statute law provides and to ensure that they can be properly regulated, for example by requiring solicitors to give relevant information to potential clients.
It is obviously right that consumers who enter Thai Trading agreements should have the same protection as uplift cases that may be conferred by regulations under new section 58(3)(c) of the Courts and Legal Services Act 1990, which clause 29 would insert. By contrast, non-contentious business agreements, if they are excluded by amendment No. 56, can be regulated instead under the Solicitors Act 1974.
However, Lord Goodhart made it clear that all he was really trying to do was preserve the position of solicitors entering into Thai Trading agreements in respect of proceedings under section 82 of the Environmental Protection Act. Section 82 allows people aggrieved by a statutory nuisance—for example, inadequate housing—to seek an order for that nuisance to be put right. Those cases are heard in a magistrates court and are technically criminal cases, although they are in reality brought to enforce a civil right.
Conditional fees are not permitted in criminal cases under the existing legislation, and that position is maintained by the Bill. However, as a result, the effect of bringing Thai Trading agreements into the scope of the legislation so as to be able to regulate them in the consumer interest is to outlaw them in those section 82 proceedings.
The Government have considered with great care the options for resolving the problem. In particular, we have been reluctant to make an isolated exception to the principle that conditional fees are inappropriate in criminal cases. However, on balance, the Government are now persuaded that no win, no fee agreements where there is no uplift—for example, Thai Trading-type agreements—should remain available to individuals seeking to enforce their rights in that type of case. Housing disrepair is one of the Government's stated priority areas for the community legal service and we accept that it would be perverse to remove an effective route for gaining access to justice in that area.
As I have explained, the solution proposed by Lord Goodhart went too far. However, the only way open to the Government to achieve the desired result was to allow his amendment to pass last week and then to try to perfect it in this House. The issue is best dealt with by amendment to new section 58A(1)(a) of the Courts and 1237 Legal Services Act. That provision was not amended in the Commons and so could not be amended last week in the other place.
The Lord Chancellor accepted Lord Goodhart's amendment for the time being, on the basis that we would table an amendment here to deal squarely with the position in Environmental Protection Act cases. That is what Government amendment (a) would do, and I am sure that it will meet with the agreement of hon. Members on both sides of the House. I commend it to the House.
§ Mr. Hawkins
The Minister is absolutely right to say that we welcome the Government's belated acceptance that the Opposition were right all along to table in Committee and on Report amendments that were almost identical to the amendment that Government now propose.
I am delighted to welcome the Government's change of mind. In the debate on Report, the Minister said that, at that stage,The Government do not believe that such a careful consideration of the issues is possible in the time that the Bill will be considered by the House.He went further, stating his belief thatit would be most inappropriate, and possibly unjust, to make a single exceptionof the type that we were then proposing. He said that there was "nothing unique" about the provisions of section 82 of the Environmental Protection Act 1990, and that he was concerned thatThere well may be provisions elsewhere in the criminal law with similar effect so that conditional fees might be a possibility.According to him, the Government's then position was thatIf we are to consider breaching the general principle, it is important that that is undertaken on a logical basis and is not piecemeal.He added that "such a breach", as he called it,can be undertaken only after very careful thought about the impact of conditional fees—regardless of whether enhanced fees are being sought"—in other words, Thai Trading-type uplift cases—in the criminal justice process."—[Official Report, 22 June 1999; Vol. 333, c. 1050.]However, wiser counsels have clearly prevailed in the succeeding weeks.
The debate in another place was somewhat contorted. After the Lord Chancellor had spoken, Lord Mishcon asked:My Lords, has the noble and learned Lord set a precedent in this House so far as he knows for recommending the acceptance of an amendment which in fact he does not accept?To which the Lord Chancellor replied:My Lords, I rather think that it is a record, yes."—[Official Report, House of Lords, 14 July 1999; Vol. 604, c. 435.]It was indeed an extraordinary position. Nevertheless, I am delighted that the Government have finally reached this conclusion. The Lord Chancellor said that the position is not free from complexity. The Government's contortions before they finally accepted that the Opposition were right all along—right in Committee and 1238 right on Report—have not been free from complexity either, as the debate in another place on 14 July made clear.
I shall briefly set out the reasons why the Opposition and charitable organisations such as Shelter were so concerned about this matter. Now that we have finally persuaded the Government to accept our arguments, it is important to set out precisely what they are. Our arguments were also made by the Law Society and Shelter.
§ Mr. Hawkins
Perhaps the Minister misunderstands me. I do not wish to be grudging and I have said already that we are pleased that the Government have accepted our arguments. However, it is important to set out the strength of the case so that those who examine our proceedings may understand it clearly.
Shelter and the Law Society pointed out that the decision of the Court of Appeal in Thai Trading Co v. Taylor, which was reported in The Times of 6 March 1998, is now incorporated in full. The Court of Appeal's decision in that case overruled a previous decision of the divisional court in the case of British Waterways Board v. Norman, permitting legal representatives to act in housing disrepair cases in magistrates courts on behalf of tenants of low means.
Many hon. Members on both sides of the House have dealt with such cases in their legal practices and I am sure that almost all hon. Members have been approached at their surgeries or by letter about cases involving tenants of modest means. Legal aid has never been available to such tenants because proceedings under the Environmental Protection Act 1990 are technically criminal proceedings. Therefore, those tenants have relied on lawyers who were prepared to act on their behalf on a purely speculative basis. The exclusion of all criminal proceedings from Thai Trading-type conditional fees thus bars any such speculative arrangements.
The Government's amendment will remedy the situation. The Government have incorporated the European convention on human rights into British law and they must certify that every Act of Parliament will comply with it. In approaching hon. Members who were interested in the Bill in Committee, Shelter pointed out that, unless the amendment was made, the certification that the Bill complied with the European convention on human rights could not properly be given. An amendment advancing that case was moved initially by Lord Goodhart in another place, and it was withdrawn only after the Government said that they would consider the issue further and, if it was thought appropriate at some later stage, might table their own amendment. The Government have finally done so at this very late stage.
In Standing Committee, the Minister's predecessor, the present Minister of State, Foreign and Commonwealth Office, the hon. Member for Ashfield (Mr. Hoon), said that 1239 he could not accept an amendment that would make taxpayers' money available for representation for summary complaints that are technically criminal proceedings because they require a complaint to a magistrates court to be issued. He went on to say:I believe that other methods of funding such as no-win, no-fee agreements of the type that we constantly discuss can be used and the non-availability of legal aid does not prevent a complainant from taking a reasonable case to court."—[Official Report, Standing Committee E, 4 May 1999; c. 160.]Shelter was concerned that Parliament should give people the right to take action in respect of housing disrepair and certain other nuisances.
Sadly, in many towns and even some villages in this country there are tenants of houses in disrepair who have limited means. They have no opportunity to fund from their own resources the cost of taking enforcement action. Therefore, the proceedings taken under the Environmental Protection Act 1990 are the only effective means of securing a remedy for such tenants. The Law Society pointed out that, as part of their pro bono work, many solicitors take on those cases on a speculative basis. The Minister mentioned earlier that he used to work in a law centre and that those centres frequently take up such cases. There is a concern that people may be entitled to free legal advice in law centres under the green form scheme, but may not necessarily be able to take the proceedings any further.
By accepting the amendment at this late stage, the Government will give statutory force to the full effect of the Court of Appeal's decision in respect of Thai Trading. The Court of Appeal overruled the decision of the divisional court in the earlier case of British Waterways Board v. Norman—which was a housing disrepair case—which held that solicitors could not recover costs in successful cases when they had acted speculatively.
When Shelter briefed all Committee members, it pointed out that a range of legal services for people with housing problems was provided through its nationwide network of housing aid centres by a legal team with a wealth of experience in taking housing cases such as this through the legal system. Shelter is concerned to protect disadvantaged citizens who are in urgent housing need. It pointed out correctly that the section 82 prosecutions under the Environmental Protection Act 1990 provide a vital remedy for many of Shelter's clients who otherwise have no effective means of combating conditions that may jeopardise their health and that of their families.
§ Mr. Malins
My hon. Friend mentioned solicitors doing pro bono work. For many years, practitioners in criminal law found themselves in a difficult position. When clients presented with difficulties relating to the Environmental Protection Act, solicitors were not sure how far beyond the green form they could go and often had to act pro bono in order to assist their clients.
§ Mr. Hawkins
My hon. Friend has the benefit of extensive knowledge and practice in this area. He is right to draw attention to the social service provided by solicitors who took up such cases on a pro bono basis.
When Shelter originally made representations to Committee members about the Bill, it pointed out that, if the Government did not accept the amendment and neither made legal aid available nor allowed conditional fees to 1240 fund the cases, many of the clients whom Shelter was established to represent would be denied access to justice—which is the very title of the Bill—and therefore essential work to improve their living conditions would not be carried out. We welcome the fact that, at this late stage, the Government have accepted the force of our arguments both in Committee and on Report. I hope that many tenants of limited means will receive protection in future under the 1990 Act as a result of the Government's wise decision.
§ Mr. Burnett
I shall not detain the House for long. I welcome the Minister's speech and I welcome wholeheartedly this concession. I pay tribute to my noble and learned Friend Lord Goodhart, who has done so much work on this Bill—particularly this aspect of it. We are grateful to the Government and are entirely happy to support the amendment.
§ Mr. Malins
I declare an interest as a solicitor who has practised in the criminal field over many years. I qualified in 1971, just after a housing boom, and I spent many years helping people with difficult housing cases. I shall turn to that matter in a moment. I declare an interest also as a recorder of the Crown court and an acting metropolitan stipendiary magistrate, in which capacity I try matters judicially. That is relevant because the debate relates to the Environmental Protection Act 1990 and summonses thereunder, and, for many years, I have viewed the problem from both ends, as a practitioner and a sitting member of the judiciary.
With that background, I can say that most of us who practised criminal law—I mostly did so outside London—found conditional fee arrangements wholly irrelevant to our way of life as criminal practitioners. We practised under a legal aid system or a private system. Under the latter, we could charge a fair rate for the job, but if the client was entitled to legal aid, we applied for that aid and got it. Conditional fee arrangements were nothing to do with us. Whenever it is said, as it has been said by the Government, that conditional fee arrangements are not appropriate in criminal proceedings, that strikes a chord with me.
I was, however, struck by what my hon. Friend the Member for Surrey Heath (Mr. Hawkins) said a few moments ago about Shelter and its support for the proposal to allow proceedings under section 82 of the Environmental Protection Act to be funded by conditional fee agreements. Why was I struck by that? During my days in practice, when clients came to see me about an issue relating to their housing, it was difficult for me to know what to do.
As my hon. Friend, who practised the law for many years, would agree, a solicitor could help someone to a limited extent only on what was called the green form system, but, as far as I recall—I will be corrected if I am wrong—no legal aid was available to take a landlord to court under the Environmental Protection Act. That was regarded as a great gap in the system. What happened? Many of us decided to act on a pro bono basis, in the days when that was common practice—more of that in a moment.
Let me now refer to Shelter. When I was considering what I had to contribute to the debate, I was struck by the good work done by the Minister for London and 1241 Construction over many years before he came into the House. As I recall, in his former capacity, the hon. Gentleman was heavily involved in Shelter. I believe that it was there that I first met him because he had a deep interest, as I did, in remedies for tenants in very poor housing.
The first seat that I fought was Liverpool, Toxteth, in both general elections in 1974. I subsequently fought the Lewisham, East seat in 1979 and then Croydon, North-West, which I was privileged to represent for many years. One of the common features of those constituencies was that they had poor housing and tenants who suffered as a result. They would often come to see me about housing at my surgeries—an experience that I am sure is shared by many hon. Members. My constituents came to me, described the problems of condensation or unsafe electricity in their home and invited me to come and see their home.
Many hon. Members will have been to such rented flats or houses in their constituency to find out what is going on. We find ourselves saying to tenants, "You must act. We shall do what we can as Members of Parliament, but you have to follow proceedings under section 82 of the Environmental Protection Act."
When I first met the Minister for London and Construction, as he now is, he was heavily involved in Shelter, and I return to Shelter for my next few comments because it has been hugely influential in housing and has constantly offered its support for the proposition that proceedings under section 82 of the Environmental Protection Act should be funded by conditional fee agreements. Pressure from my hon. Friend the Member for Surrey Heath, who sits on the Front Bench, and a satisfactory approach by the Government have enabled us to reach a happy conclusion.
§ Mr. Hawkins
Does my hon. Friend agree that the Government's concession demonstrates, among other things, the value of Shelter's work with hon. Members on both sides of the House? My hon. Friend may be slightly shocked to hear that, on a previous occasion, the Minister expressed surprise that any Conservative Member should quote Shelter in support of his or her arguments. However, one of Shelter's big advantages, as I am sure my hon. Friend will agree, is that it has always been prepared to work with all parties in making its case. In its current campaign, which involves football, it is working with the all-party House of Commons football team.
§ Mr. Malins
I am most grateful to my hon. Friend for pointing out what is self-evident: Shelter is, and has been for many years, interested in housing problems and, in my experience, it is without political affiliations. Hon. Members on both sides of the House support—
§ Mr. Deputy Speaker (Mr. Michael J. Martin)
Order. The hon. Gentleman is going wide of the amendment before us. He should address his remarks to the amendment.
§ Mr. Malins
I am most grateful for your guidance, Mr. Deputy Speaker. I was tempted by my hon. Friend. 1242 It is most unlike me to stray from the subject of the amendment. We are discussing the narrower issue of conditional fee agreements in so far as they relate to proceedings under the Environmental Protection Act. I should have gone no further than saying that Shelter supports the proposition, and I propose to go no further now.
The concept of the tenant being unable to receive legal help with complaints against a bad landlord is one with which no Member of the House should be happy. The ability for us to say that conditional fee agreements should apply to proceedings under section 82 of the Environmental Protection Act is a major step forward. It is more significant than many hon. Members appreciate, because it takes a huge step towards enabling tenants to obtain justice. As my hon. Friend the Member for Surrey Heath said, Shelter has supported that proposition throughout.
§ Mr. Tim Collins (Westmorland and Lonsdale)
My hon. Friend is developing a powerful rationale for welcoming the Minister's concession on this point, but does he believe that the concession would have been necessary if the Government had, at an earlier stage, listened to Shelter's powerful advocacy? Does not the fact that the concession was made at such a late stage cause concern about the extent to which the Government listen to Shelter on matters across the board?
§ Mr. Malins
I am most grateful to my hon. Friend. There seems now to be consensus on this matter. I have attended many debates in this House in which I have witnessed sharp disagreements between Front-Bench Members, but I have been pleasantly surprised this afternoon to see this measure of agreement and the welcome that we are offering the Government on this point. My hon. Friend may well be right. It has taken concerted pressure not only from my hon. Friend the Member for Surrey Heath and other colleagues but from Shelter and other organisations to persuade the Government to permit the use of conditional fee agreements.
What will be the benefits of that proposal for tenants? First, let us consider its effect on the legal profession. It will make life much easier for the legal profession. Hitherto, lawyers could give very little help to a person who had a complaint against a landlord; now the position is different. Hitherto, they had to act pro bono or simply turn the person away and send them off to the citizens advice bureau.
How else will tenants in such a position benefit as a result of what we are deciding? Shelter will be able to become much more involved. It is not generally known that Shelter greatly helps many people who have housing problems. It has clients who have urgent needs, and it rightly says that such people should have access to justice and that their cases should be dealt with speedily and efficiently by the courts. It is terribly important that such tenants get justice.
§ Mr. Baldry
My hon. Friend is talking about benefit to the profession and citizens, but the concession can be of no benefit to anyone unless it is promulgated. As he says, for a very long time, those concerned by such landlord-tenant matters have not had access to legal aid and have not therefore tended to go to solicitors. 1243 They have tended to have recourse to citizens advice bureaux or similar legal rights centres. Does my hon. Friend agree that if this and other reforms are to work, it is vital that the Government properly publicly promulgate them in a widespread publicity campaign?
§ Mr. Malins
My hon. Friend is absolutely right. The problem with our debates is that so many people outside the House do not hear the results of them. Following his suggestion, I strongly urge the Government to adopt the very sensible policy of ensuring that a summary of this debate, the point that has emerged from it and the decisions that we have reached is circulated to all bodies that need to know. That includes the Law Society, the Bar, firms of solicitors and every housing body that has anything to do with helping tenants.
Many of us in the House have regretted over many years the fact that tenants have been disadvantaged under the Environmental Protection Act through not being able to receive legal aid. It is all very well to get an hour's legal advice under the green form, but the ability to go to court to enforce one's remedy, often against a landlord who is a nasty piece of work, is very important. I therefore join those who have welcomed the progress.
Labour Members will say that I have spoken for too long, and they may be right. However, I must conclude with the observation that, as a practising solicitor, I found it very sad that so many people with a remedy could not have it enforced. Following the pressure from my hon. Friend the Member for Surrey Heath and Shelter, the Government have reached a view on the Lords amendment that is in accordance with very good sense. I very much hope that they will lose no opportunity in ensuring that news of what we have all decided is spread widely throughout the legal world and the world of practitioners.
§ Lords amendment to Commons amendment No. 56 disagreed to.
§ Government amendment (a) in lieu thereof agreed to.